II
Calendar No. 332
112th CONGRESS
2d Session
H. R. 1837
IN THE SENATE OF THE UNITED STATES
March 1, 2012
Received
March 2, 2012
Read the first time
March 5, 2012
Read the second time and placed on the calendar
AN ACT
To address certain water-related concerns on the San Joaquin River, and for other purposes.
Short title; table of contents
Short title
This Act may be cited
as the Sacramento-San Joaquin Valley
Water Reliability Act
.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Title I—Central Valley Project Water Reliability
Sec. 101. Amendment to purposes.
Sec. 102. Amendment to definition.
Sec. 103. Contracts.
Sec. 104. Water transfers, improved water management, and conservation.
Sec. 105. Fish, wildlife, and habitat restoration.
Sec. 106. Restoration fund.
Sec. 107. Additional authorities.
Sec. 108. Bay-Delta Accord.
Sec. 109. Natural and artificially spawned species.
Sec. 110. Authorized service area.
Sec. 111. Regulatory streamlining.
Title II—San Joaquin River restoration
Sec. 201. Repeal of the San Joaquin River settlement.
Sec. 202. Purpose.
Sec. 203. Definitions.
Sec. 204. Implementation of restoration.
Sec. 205. Disposal of property; title to facilities.
Sec. 206. Compliance with applicable law.
Sec. 207. Compliance with Central Valley Project Improvement Act.
Sec. 208. No private right of action.
Sec. 209. Implementation.
Sec. 210. Repayment contracts and acceleration of repayment of construction costs.
Sec. 211. Repeal.
Sec. 212. Water supply mitigation.
Sec. 213. Additional Authorities.
Title III—Repayment contracts and acceleration of repayment of construction costs
Sec. 301. Repayment contracts and acceleration of repayment of construction costs.
Title IV—Bay-Delta Watershed water rights preservation and protection
Sec. 401. Water rights and area-of-origin protections.
Sec. 402. Sacramento River settlement contracts.
Sec. 403. Sacramento River Watershed Water Service Contractors.
Sec. 404. No redirected adverse impacts.
Title V—Miscellaneous
Sec. 501. Precedent.
Central Valley Project Water Reliability
Amendment to purposes
Section 3402 of the Central Valley Project Improvement Act (106 Stat. 4706) is amended—
in subsection (f), by striking the period at the end; and
by adding at the end the following:
to ensure that water dedicated to fish and wildlife purposes by this title is replaced and provided to Central Valley Project water contractors by December 31, 2016, at the lowest cost reasonably achievable; and
to facilitate and expedite water transfers in accordance with this Act.
.
Amendment to definition
Section 3403 of the Central Valley Project Improvement Act (106 Stat. 4707) is amended—
by amending subsection (a) to read as follows:
the term anadromous fish means those native stocks of salmon (including steelhead) and sturgeon that, as of October 30, 1992, were present in the Sacramento and San Joaquin Rivers and their tributaries and ascend those rivers and their tributaries to reproduce after maturing in San Francisco Bay or the Pacific Ocean;
;
in subsection (l), by striking
and,
in subsection (m),
by striking the period and inserting ; and
, and
by adding at the end the following:
the term reasonable flows means water flows capable of being maintained taking into account competing consumptive uses of water and economic, environmental, and social factors.
.
Contracts
Section 3404 of the Central Valley Project Improvement Act (106 Stat. 4708) is amended—
in the heading, by
striking Limitation on
contracting and contract reform
and inserting
Contracts
; and
by striking the language of the section and by adding:
Renewal of existing long-Term contracts
Upon request of the contractor, the Secretary shall renew any existing long-term repayment or water service contract that provides for the delivery of water from the Central Valley Project for a period of 40 years.
Administration of Contracts
Except as expressly provided by this Act, any existing long-term repayment or water service contract for the delivery of water from the Central Valley Project shall be administered pursuant to the Act of July 2, 1956 (70 Stat. 483).
Delivery charge
Beginning on the date of the enactment of this Act, a contract entered into or renewed pursuant to this section shall include a provision that requires the Secretary to charge the other party to such contract only for water actually delivered by the Secretary.
.
Water transfers, improved water management, and conservation
Section 3405 of the Central Valley Project Improvement Act (106 Stat. 4709) is amended as follows:
In subsection (a)—
by inserting
before Except as provided herein
the following: The
Secretary shall take all necessary actions to facilitate and expedite transfers
of Central Valley Project water in accordance with this Act or any other
provision of Federal reclamation law and the National Environmental Policy Act
of 1969.
;
in paragraph
(1)(A), by striking to combination
and inserting or
combination
;
in paragraph (2), by adding at the end the following:
The contracting district from which the water is coming, the agency, or the Secretary shall determine if a written transfer proposal is complete within 45 days after the date of submission of such proposal. If such district or agency or the Secretary determines that such proposal is incomplete, such district or agency or the Secretary shall state with specificity what must be added to or revised in order for such proposal to be complete.
Except as provided in this section, the Secretary shall not impose mitigation or other requirements on a proposed transfer, but the contracting district from which the water is coming or the agency shall retain all authority under State law to approve or condition a proposed transfer.
; and
by adding at the end the following:
Notwithstanding any other provision of Federal reclamation law—
the authority to make transfers or exchanges of, or banking or recharge arrangements using, Central Valley Project water that could have been conducted before October 30, 1992, is valid, and such transfers, exchanges, or arrangements shall not be subject to, limited, or conditioned by this title; and
this title shall not supersede or revoke the authority to transfer, exchange, bank, or recharge Central Valley Project water that existed prior to October 30, 1992.
.
In subsection (b)—
in the heading, by
striking METERING
and inserting
MEASUREMENT
; and
by inserting after
the first sentence the following: The contracting district or agency,
not including contracting districts serving multiple agencies with separate
governing boards, shall ensure that all contractor-owned water delivery systems
within its boundaries measure surface water at the district or agency’s
facilities up to the point the surface water is commingled with other water
supplies.
.
By striking subsection (d).
By redesignating subsections (e) and (f) as subsections (d) and (e), respectively.
By amending subsection (e)(as redesignated by paragraph (4))—
by striking
as a result of the increased repayment
and inserting that
exceed the cost-of-service
;
by inserting
the delivery of
after rates applicable to
;
and
by striking
, and all increased revenues received by the Secretary as a result of
the increased water prices established under subsection 3405(d) of this
section,
.
Fish, wildlife, and habitat restoration
Section 3406 of the Central Valley Project Improvement Act (106 Stat. 4714) is amended as follows:
In subsection (b)—
in paragraph (1)(B)—
by
striking is authorized and directed to
and inserting
may
;
by
inserting reasonable water
after to
provide
;
by striking anadromous fish, except
that such
and inserting anadromous fish. Such
;
by striking Instream flow
and inserting Reasonable instream flow
;
by
inserting and the National Marine Fisheries Service
after
United States Fish and Wildlife Service
; and
by
striking California Department of Fish and Game
and inserting
United States Geological Survey
;
in paragraph (2)—
by
striking primary purpose
and inserting
purposes
;
by
striking but not limited to
before additional
obligations
; and
by
adding after the period the following: All Central Valley Project water
used for the purposes specified in this paragraph shall be credited to the
quantity of Central Valley Project yield dedicated and managed under this
paragraph by determining how the dedication and management of such water would
affect the delivery capability of the Central Valley Project during the 1928 to
1934 drought period after fishery, water quality, and other flow and
operational requirements imposed by terms and conditions existing in licenses,
permits, and other agreements pertaining to the Central Valley Project under
applicable State or Federal law existing on October 30, 1992, have been met. To
the fullest extent possible and in accordance with section 3411, Central Valley
Project water dedicated and managed pursuant to this paragraph shall be reused
to fulfill the Secretary’s remaining contractual obligations to provide Central
Valley Project water for agricultural or municipal and industrial
purposes.
;
by amending paragraph (2)(C) to read:
If by March 15th of any year the quantity of Central Valley Project water forecasted to be made available to water service or repayment contractors in the Delta Division of the Central Valley Project is below 75 percent of the total quantity of water to be made available under said contracts, the quantity of Central Valley Project yield dedicated and managed for that year under this paragraph shall be reduced by 25 percent.
.
By adding at the end the following:
Satisfaction of purposes
By pursuing the activities described in this section, the Secretary shall be deemed to have met the mitigation, protection, restoration, and enhancement purposes of this title.
.
Restoration fund
In general
Section 3407(a) of the Central Valley Project Improvement Act (106 Stat. 4726) is amended as follows:
By inserting
(1) In
General.—
before There is
hereby
.
By striking
Not less than 67 percent
and all that follows through
Monies
and inserting Monies
.
By adding at the end the following:
Prohibitions
The Secretary may not directly or indirectly require a donation or other payment to the Restoration Fund—
or environmental restoration or mitigation fees not otherwise provided by law, as a condition to—
providing for the storage or conveyance of non-Central Valley Project water pursuant to Federal reclamation laws; or
the delivery of water pursuant to section 215 of the Reclamation Reform Act of 1982 (Public Law 97–293; 96 Stat. 1270); or
for any water that is delivered with the sole intent of groundwater recharge.
.
Certain payments
Section 3407(c)(1) of the Central Valley Project Improvement Act is amended—
by striking
mitigation and restoration
;
by striking
provided for or
; and
by striking
of fish, wildlife
and all that follows through the period and
inserting of carrying out all activities described in this
title.
.
Adjustment and Assessment of Mitigation and Restoration Payments
Section
3407(d)(2) of the Central Valley Project Improvement Act is amended by
inserting , or after October 1, 2013, $4 per megawatt-hour for Central
Valley Project power sold to power contractors (October 2013 price
levels)
after $12 per acre-foot (October 1992 price levels) for
municipal and industrial water sold and delivered by the Central Valley
Project
.
Completion of actions
Section 3407(d)(2)(A)
of the Central Valley Project Improvement Act is amended by inserting no
later than December 31, 2020,
after That upon the completion of
the fish, wildlife, and habitat mitigation and restoration actions mandated
under section 3406 of this title,
.
Report; advisory board
Section 3407 of the Central Valley Project Improvement Act (106 Stat. 4714) is amended by adding at the end the following:
Report on expenditure of funds
At the end of each fiscal year, the Secretary, in consultation with the Restoration Fund Advisory Board, shall submit to Congress a plan for the expenditure of all of the funds deposited into the Restoration Fund during the preceding fiscal year. Such plan shall contain a cost-effectiveness analysis of each expenditure.
Advisory board
Establishment
There
is hereby established the Restoration Fund Advisory Board (hereinafter in this
section referred to as the Advisory Board
) composed of 12
members selected by the Secretary, each for four-year terms, one of whom shall
be designated by the Secretary as Chairman. The members shall be selected so as
to represent the various Central Valley Project stakeholders, four of whom
shall be from CVP agricultural users, three from CVP municipal and industrial
users, three from CVP power contractors, and two at the discretion of the
Secretary. The Secretary and the Secretary of Commerce may each designate a
representative to act as an observer of the Advisory Board.
Duties
The duties of the Advisory Board are as follows:
To meet at least semiannually to develop and make recommendations to the Secretary regarding priorities and spending levels on projects and programs carried out pursuant to the Central Valley Project Improvement Act.
To ensure that any advice or recommendation made by the Advisory Board to the Secretary reflect the independent judgment of the Advisory Board.
Not later than December 31, 2013, and annually thereafter, to transmit to the Secretary and Congress recommendations required under subparagraph (A).
Not later than December 31, 2013, and biennially thereafter, to transmit to Congress a report that details the progress made in achieving the actions mandated under section 3406 of this title.
Administration
With the consent of the appropriate agency head, the Advisory Board may use the facilities and services of any Federal agency.
.
Additional authorities
Authority for certain activities
Section 3408(c) of the Central Valley Project Improvement Act (106 Stat. 4728) is amended to read as follows:
Contracts for additional storage and delivery of water
In general
The Secretary is authorized to enter into contracts pursuant to Federal reclamation law and this title with any Federal agency, California water user or water agency, State agency, or private organization for the exchange, impoundment, storage, carriage, and delivery of nonproject water for domestic, municipal, industrial, fish and wildlife, and any other beneficial purpose.
Limitation
Nothing in this subsection shall be deemed to supersede the provisions of section 103 of Public Law 99–546 (100 Stat. 3051).
Authority for certain activities
The Secretary shall use the authority granted by this subsection in connection with requests to exchange, impound, store, carry, or deliver nonproject water using Central Valley Project facilities for any beneficial purpose.
Rates
The Secretary shall develop rates not to exceed the amount required to recover the reasonable costs incurred by the Secretary in connection with a beneficial purpose under this subsection. Such rates shall be charged to a party using Central Valley Project facilities for such purpose. Such costs shall not include any donation or other payment to the Restoration Fund.
Construction
This subsection shall be construed and implemented to facilitate and encourage the use of Central Valley Project facilities to exchange, impound, store, carry, or deliver nonproject water for any beneficial purpose.
.
Reporting requirements
Section 3408(f) of the Central Valley Project Improvement Act (106 Stat. 4729) is amended—
by striking
Interior and Insular Affairs and the Committee on Merchant Marine and
Fisheries
and inserting Natural Resources
;
in the second
sentence, by inserting before the period at the end the following: ,
including progress on the plan required by subsection (j)
; and
by adding at the
end the following: The filing and adequacy of such report shall be
personally certified to the Committees referenced above by the Regional
Director of the Mid-Pacific Region of the Bureau of
Reclamation.
.
Project yield increase
Section 3408(j) of the Central Valley Project Improvement Act (106 Stat. 4730) is amended as follows:
By redesignating paragraphs (1) through (7) as subparagraphs (A) through (G), respectively.
By striking In order to minimize
adverse effects, if any, upon
and inserting (1)
In general.—In
order to minimize adverse effects upon
.
By striking needs, the
Secretary,
and all that follows through submit to the Congress,
a
and inserting needs, the Secretary, on a priority basis and
not later than September 30, 2013, shall submit to Congress a
.
By striking
increase,
and all that follows through options:
and inserting increase, as soon as possible but not later than September
30, 2016 (except for the construction of new facilities which shall not be
limited by that deadline), the water of the Central Valley Project by the
amount dedicated and managed for fish and wildlife purposes under this title
and otherwise required to meet the purposes of the Central Valley Project
including satisfying contractual obligations. The plan required by this
subsection shall include recommendations on appropriate cost-sharing
arrangements and authorizing legislation or other measures needed to implement
the intent, purposes, and provisions of this subsection and a description of
how the Secretary intends to use the following options—
.
In subparagraph (A), by inserting
and construction of new water storage facilities
before the
semicolon.
In subparagraph
(F), by striking and
at the end.
In subparagraph
(G), by striking the period and all that follows through the end of the
subsection and inserting ; and
.
By inserting after subparagraph (G) the following:
Water banking and recharge.
.
By adding at the end the following:
Implementation of plan
The Secretary shall implement the plan required by paragraph (1) commencing on October 1, 2013. In order to carry out this subsection, the Secretary shall coordinate with the State of California in implementing measures for the long-term resolution of problems in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary.
Failure of the plan
Notwithstanding any other provision of Federal reclamation law, if by September 30, 2016, the plan required by paragraph (1) fails to increase the annual delivery capability of the Central Valley Project by 800,000 acre-feet, implementation of any non-mandatory action under section 3406(b)(2) shall be suspended until the plan achieves an increase in the annual delivery capability of the Central Valley Project by 800,000 acre-feet.
.
Technical correction
Section 3408(h) of the Central Valley Project Improvement Act (106 Stat. 4729) is amended—
in paragraph (1),
by striking paragraph (h)(2)
and inserting paragraph
(2)
; and
in paragraph (2),
by striking paragraph (h)(i)
and inserting paragraph
(1)
.
Water storage project construction
The Secretary, acting through the Commissioner of the Bureau of Reclamation, may partner or enter into an agreement on the water storage projects identified in section 103(d)(1) of the Water Supply Reliability, and Environmental Improvement Act (Public Law 108–361)(and Acts supplemental and amendatory to the Act) with local joint powers authorities formed pursuant to State law by irrigation districts and other local water districts and local governments within the applicable hydrologic region, to advance these projects. No additional Federal funds are authorized for the activities authorized in sections 103(d)(1)(A)(i), 103(d)(1)(A)(ii), and 103(d)(1)(A)(iii) of Public Law 108–361. However, each water storage project under sections 103(d)(1)(A)(i), 103(d)(1)(A)(ii), and 103(d)(1)(A)(iii) of Public Law 108–361 is authorized for construction if non-Federal funds are used for financing and constructing the project.
Bay-Delta Accord
Congressional direction regarding central valley project and California state water project operations
The Central Valley
Project and the State Water Project shall be operated pursuant to the water
quality standards and operational constraints described in the
Principles for Agreement on the Bay-Delta Standards Between the State of
California and the Federal Government
dated December 15, 1994, and such
operations shall proceed without regard to the Endangered Species Act of 1973
(16 U.S.C. 1531 et
seq.) or any other law pertaining to the operation of the
Central Valley Project and the California State Water Project. Implementation
of this section shall be in strict conformance with the Principles for
Agreement on the Bay-Delta Standards Between the State of California and the
Federal Government
dated December 15, 1994.
Application of laws to others
Neither a
Federal department nor the State of California, including any agency or board
of the State of California, shall impose on any water right obtained pursuant
to State law, including a pre-1914 appropriative right, any condition that
restricts the exercise of that water right in order to conserve, enhance,
recover or otherwise protect any species that is affected by operations of the
Central Valley Project or California State Water Project. Nor shall the State
of California, including any agency or board of the State of California,
restrict the exercise of any water right obtained pursuant to State law,
including a pre-1914 appropriative right, in order to protect, enhance, or
restore under the Public Trust Doctrine any public trust value. Implementation
of the Principles for Agreement on the Bay-Delta Standards Between the
State of California and the Federal Government
dated December 15, 1994,
shall be in strict compliance with the water rights priority system and
statutory protections for areas of origin.
Costs
No cost associated with the implementation of this section shall be imposed directly or indirectly on any Central Valley Project contractor, or any other person or entity, unless such costs are incurred on a voluntary basis.
Native species protection
California law is preempted with respect to any restriction on the quantity or size of nonnative fish taken or harvested that preys upon one or more native fish species that occupy the Sacramento and San Joaquin Rivers and their tributaries or the Sacramento-San Joaquin Rivers Delta.
Natural and artificially spawned species
After the date of the enactment of this title, and regardless of the date of listing, the Secretaries of the Interior and Commerce shall not distinguish between natural-spawned and hatchery-spawned or otherwise artificially propagated strains of a species in making any determination under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) that relates to any anadromous fish species present in the Sacramento and San Joaquin Rivers or their tributaries and ascend those rivers and their tributaries to reproduce after maturing in San Francisco Bay or the Pacific Ocean.
Authorized service area
The authorized service area of the Central Valley Project shall include the area within the boundaries of the Kettleman City Community Services District, California, as those boundaries exist on the date of the enactment of this title. Notwithstanding the provisions of the Act of October 30, 1992 (Public Law 102–575, 106 Stat. 4600 et seq.), upon enactment of this title, the Secretary is authorized and directed to enter into a long-term contract in accordance with the reclamation laws with the Kettleman City Community Services District, California, for the delivery of up to 900 acre-feet of Central Valley Project water for municipal and industrial use. The Secretary may temporarily reduce deliveries of the quantity of water made available pursuant to up to 25 percent of such total whenever reductions due to hydrologic circumstances are imposed upon agricultural deliveries of Central Valley Project water. If any additional infrastructure or related-costs are needed to implement this section, such costs shall be the responsibility of the non-Federal entity.
Regulatory streamlining
Applicability of certain laws
Filing of a Notice of Determination or a Notice of Exemption for any project, including the issuance of a permit under State law, related to any project of the CVP or the delivery of water therefrom in accordance with the California Environmental Quality Act shall be deemed to meet the requirements of section 102(2)(C) of the National Environmental Protection Act of 1969 (42 U.S.C. 4332(2)(C)) for that project or permit.
Continuation of project
The Bureau of Reclamation shall not be required to cease or modify any major Federal action or other activity related to any project of the CVP or the delivery of water there from pending completion of judicial review of any determination made under the National Environmental Protection Act of 1969 (42 U.S.C. 4332(2)(C)).
Project defined
For the purposes of this section:
Cvp
The term CVP means the Central Valley Project.
Project
The term project—
means an activity that—
is undertaken by a public agency, funded by a public agency, or that requires an issuance of a permit by a public agency;
has a potential to result in physical change to the environment; and
may be subject to several discretionary approvals by governmental agencies;
may include construction activities, clearing or grading of land, improvements to existing structures, and activities or equipment involving the issuance of a permit; or
as defined under the California Environmental Quality Act in section 21065 of the California Public Resource Code.
San Joaquin River restoration
Repeal of the San Joaquin River settlement
As of the date of enactment of this title, the Secretary shall cease any action to implement the Stipulation of Settlement (Natural Resources Defense Council, et al. v. Kirk Rodgers, et al., Eastern District of California, No. Civ. S–88–1658 LKK/GGH).
Purpose
Section 10002 of the San Joaquin River
Restoration Settlement Act (Public Law
111–11) is amended by striking implementation of the
Settlement
and inserting restoration of the San Joaquin
River
.
Definitions
Section 10003 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
by striking paragraph (1) and inserting the following:
The term Restoration Flows means the additional water released or bypassed from Friant Dam to insure that the target flow entering Mendota Pool, located approximately 62 river miles downstream from Friant Dam, does not fall below 50 cubic feet per second.
;
by striking paragraph (3) and inserting the following:
The term Water Year means March 1 through the last day of February of the following Calendar Year, both dates inclusive.
; and
by adding at the end the following new paragraph:
The term Critical Water Year means when the total unimpaired runoff at Friant Dam is less than 400,000 acre-feet, as forecasted as of March 1 of that water year by the California Department of Water Resources.
.
Implementation of restoration
Section 10004 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in subsection (a)—
in the matter
preceding paragraph (1), by striking authorized and directed
and
all that follows through in the Settlement:
and inserting
authorized to carry out the following:
;
by striking paragraphs (1), (2), (4), and (5);
in paragraph (3)—
by
striking (3)
and inserting (1)
; and
by
striking paragraph 13 of the Settlement
and inserting
this part
; and
by adding at the end the following new paragraphs:
In each Water Year, commencing in the Water Year starting on March 1, 2013—
shall modify Friant Dam operations so as to release the Restoration Flows for that Water Year, except in any Critical Water Year;
shall ensure that the release of Restoration Flows are maintained at the level prescribed by this part, but that Restoration Flows do not reach downstream of Mendota Pool;
shall release the Restoration Flows in a manner that improves the fishery in the San Joaquin River below Friant Dam, but upstream of Gravelly Ford in existence as of the date of the enactment of this part, and the associated riparian habitat; and
may, without limiting the actions required under paragraphs (A) and (C) and subject to subsections 10004(a)(3) and 10004(l), use the Restoration Flows to enhance or restore a warm water fishery downstream of Gravelly Ford to and including Mendota Pool, if the Secretary determines that it is reasonable, prudent, and feasible to do so; and
Not later than 1 year after the date of the enactment of this section, the Secretary shall develop and implement, in cooperation with the State of California, a reasonable plan, to fully recirculate, recapture, reuse, exchange, or transfer all Restoration Flows and provide such recirculated, recaptured, reused, exchanged, or transferred flows to those contractors within the Friant Division, Hidden Unit, and Buchanan Unit of the Central Valley Project that relinquished the Restoration Flows so recirculated, recaptured, reused, exchanged, or transferred. Such a plan shall address any impact on ground water resources within the service area of the Friant Division, Hidden Unit, and Buchanan Unit of the Central Valley Project and mitigation may include ground water banking and recharge projects. Such a plan shall not impact the water supply or water rights of any entity outside the Friant Division, Hidden unit, and Buchanan Unit of the Central Valley Project. Such a plan shall be subject to applicable provisions of California water law and the Secretary’s use of Central Valley Project facilities to make Project water (other than water released from Friant Dam pursuant to this part) and water acquired through transfers available to existing south-of-Delta Central Valley Project contractors.
;
in subsection (b)—
in paragraph (1), by striking the
Settlement
and inserting this part
; and
in paragraph (2),
by striking the Settlement
and inserting this
part
;
in subsection (c), by striking the
Settlement
and inserting this part
;
by striking subsection (d) and inserting the following:
Mitigation of impacts
Prior to October 1, 2013, the Secretary shall identify—
the impacts associated with the release of Restoration Flows prescribed in this part;
the measures which shall be implemented to mitigate impacts on adjacent and downstream water users, landowners and agencies as a result of Restoration Flows prescribed in this part; and
prior to the implementation of decisions or agreements to construct, improve, operate, or maintain facilities that the Secretary determines are needed to implement this part, the Secretary shall implement all mitigations measures identified in subsection (d)(2) before Restoration Flows are commenced.
;
in subsection (e), by striking the
Settlement
and inserting this part
;
in subsection (f),
by striking the Settlement
and all that follows through
section 10011
and insert this part
;
in subsection (g)—
by striking
the Settlement and
before this part; and
by striking
or exchange contract
and inserting exchange contract, or
water rights settlement or holding contracts
;
in subsection (h)—
by striking
Interim
in the header;
in paragraph (1)—
in
the matter preceding subparagraph (A), by striking Interim Flows under
the Settlement
and inserting Restoration Flows under this
part
;
in subparagraph (C)—
in clause (i), by
striking Interim
and inserting Restoration
;
and
in clause (ii),
by inserting and
after the semicolon;
in
subparagraph (D), by striking and
at the end; and
by striking subparagraph (E);
in paragraph (2)—
by
striking Interim
and inserting
Restoration
;
by striking subparagraph (A); and
by
striking (B) exceed
and inserting exceed
;
in paragraph (3),
by striking Interim
and inserting Restoration
;
and
by striking paragraph (4) and inserting the following:
Claims
Within 60 days of enactment of this Act the Secretary shall promulgate a rule establishing a claims process to address current and future claims including, but not limited to, ground water seepage, flooding, or levee instability damages caused as a result of, arising out of, or related to implementation of subtitle A of title X of Public Law 111–11.
;
in subsection (i)—
in paragraph (1)—
in the matter preceding subparagraph (A),
by striking the Settlement and parts I and III
and inserting
this part
;
in
subparagraph (A), by inserting and
after the semicolon;
in subparagraph (B)—
by striking
additional amounts authorized to be appropriated, including the
;
and
by striking
; and
and inserting a period; and
by striking subparagraph (C); and
by striking paragraph (3); and
by adding at the end the following new subsections:
No impacts on other interests
No Central Valley Project or other water other than San Joaquin River water impounded by or bypassed from Friant Dam shall be used to implement subsection (a)(2) unless such use is on a voluntary basis. No cost associated with the implementation of this section shall be imposed directly or indirectly on any Central Valley Project contractor, or any other person or entity, outside the Friant Division, the Hidden Unit, or the Buchanan Unit, unless such costs are incurred on a voluntary basis. The implementation of this part shall not result directly or indirectly in any reduction in water supplies or water reliability on any Central Valley Project contractor, any State Water Project contractor, or any other person or entity, outside the Friant Division, the Hidden Unit, or the Buchanan Unit, unless such reductions or costs are incurred on a voluntary basis.
Priority
All actions taken under this part shall be subordinate to the Secretary’s use of Central Valley Project facilities to make Project water available to Project contractors, other than water released from the Friant Dam pursuant to this part.
In general
Notwithstanding section 8 of the Reclamation Act of 1902, except as provided in this part, including title IV of the Sacramento and San Joaquin Valleys Water Reliability Act, this part preempts and supersedes any State law, regulation, or requirement that imposes more restrictive requirements or regulations on the activities authorized under this part. Nothing in this part shall alter or modify the obligations, if any, of the Friant Division, Hidden Unit, and Buchanan Unit of the Central Valley Project, or other water users on the San Joaquin River or its tributaries, under orders issued by the State Water Resources Control Board pursuant to the Porter-Cologne Water Quality Control Act (California Water Code sections 13000 et seq.). Any such order shall be consistent with the congressional authorization for any affected Federal facility as it pertains to the Central Valley Project.
Project implementation
Projects to implement this title shall be phased such that each project shall follow the sequencing identified below and include at least the—
project purpose and need;
identification of mitigation measures;
appropriate environmental review; and
prior to releasing Restoration Flows under this part, the Secretary shall—
complete the implementation of mitigation measures required; and
complete implementation of the project.
.
Disposal of property; title to facilities
Section 10005 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in subsection (a),
by striking the Settlement authorized by this part
and inserting
this part
;
in subsection (b)—
in paragraph (1)—
by
striking (1) In
general.—The Secretary
and inserting The
Secretary
; and
by
striking the Settlement authorized by this part
and inserting
this part
; and
by striking paragraph (2); and
in subsection (c)—
in paragraph (1),
by striking the Settlement
and inserting this
part
;
in paragraph (2)—
by
striking through the exercise of its eminent domain authority
;
and
by
striking the Settlement
and inserting this part
;
and
in paragraph (3),
by striking section 10009(c)
and inserting section
10009
.
Compliance with applicable law
Section 10006 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in subsection (a)—
in paragraph (1),
by inserting unless otherwise provided by this part
before the
period at the end; and
in paragraph (2),
by striking the Settlement
and inserting this
part
;
in subsection (b),
by inserting , unless otherwise provided by this part
before the
period at the end;
in subsection (c)—
in paragraph (2),
by striking section 10004
and inserting this
part
; and
in paragraph (3),
by striking the Settlement
and inserting this
part
; and
in subsection (d)—
by inserting
, including without limitation to sections 10004(d) and 10004(h)(4) of
this part,
after implementing this part
; and
by striking
for implementation of the Settlement
.
Compliance with Central Valley Project Improvement Act
Section 10007 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in the matter preceding paragraph (1),
by striking
the Settlement
and inserting enactment of this
part
; and
by inserting:
and the obligations of the Secretary and all other parties to protect
and keep in good condition any fish that may be planted or exist below Friant
Dam including any obligations under section 5937 of the California Fish and
Game Code and the public trust doctrine, and those of the Secretary and all
other parties under the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.).
before , provided
; and
in paragraph (1),
by striking , as provided in the Settlement
.
No private right of action
Section 10008(a) of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
by striking
not a party to the Settlement
after person or
entity
; and
by striking
or the Settlement
before the period and inserting unless
otherwise provided by this part. Any Central Valley Project long-term water
service or repayment contractor within the Friant Division, Hidden unit, or
Buchanan Unit adversely affected by the Secretary’s failure to comply with
section 10004(a)(3) of this part may bring an action against the Secretary for
injunctive relief or damages, or both.
.
Implementation
Section 10009 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in the header by
striking ; settlement
fund
;
in subsection (a)—
in paragraph (1)—
by striking the Settlement
the first place it appears and inserting this part
;
by
striking , estimated to total
and all that follows through
subsection (b)(1),
; and
by
striking provided however,
and all that follows through
$110,000,000 of State funds
;
in paragraph (2)—
in
subparagraph (A), by striking (A)
In
general.—The Secretary
and inserting The
Secretary
;
by striking subparagraph (B); and
in paragraph (3)—
by
striking Except as provided in the Settlement, to
and inserting
To
; and
by
striking this Settlement
and inserting this
part
;
in subsection (b)(1)—
by striking
In addition
through however, that the
and
inserting The
;
by striking
such additional appropriations only in amounts equal to
;
and
by striking or the
Settlement
before the period;
in subsection (c)—
in paragraph (1)—
in
the matter preceding subparagraph (A), by striking the
Settlement
and inserting this part
;
in
subparagraph (C), by striking from the sale of water pursuant to the
Settlement, or
; and
in
subparagraph (D), by striking the Settlement
and inserting
this part
;
in paragraph (2),
by striking the Settlement and
before this part
;
and
by striking subsections (d) through (f).
Repayment contracts and acceleration of repayment of construction costs
Section 10010 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in subsection (a)—
in paragraph (3)(D), by striking the
Settlement and
before this part
; and
in paragraph (4)(C), by striking the
Settlement and
before this part
;
in subsection (c), by striking paragraph (3);
in subsection
(d)(1), by striking the Settlement
in both places it appears and
inserting this part
;
in subsection (e)—
in paragraph (1)—
by
striking Interim Flows or Restoration Flows, pursuant to paragraphs 13
or 15 of the Settlement
and inserting Restoration Flows,
pursuant to this part
;
by
striking Interim Flows or
before Restoration
Flows
; and
by
striking the Interim Flows or Restoration Flows or is intended to
otherwise facilitate the Water Management Goal, as described in the
Settlement
and inserting Restoration Flows
; and
in paragraph (2)—
by
striking except as provided in paragraph 16(b) of the Settlement
after Friant Division long-term contractor
; and
by
striking the Interim Flows or Restoration Flows or to facilitate the
Water Management Goal
and inserting Restoration
Flows
.
Repeal
Section 10011 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is repealed.
Water supply mitigation
Section 10202(b) of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in paragraph (1),
by striking the Interim or Restoration Flows authorized in part I of
this subtitle
and inserting Restoration Flows authorized in this
part
;
in paragraph (2),
by striking the Interim or Restoration Flows authorized in part I of
this subtitle
and inserting Restoration Flows authorized in this
part
; and
in paragraph (3)—
in subparagraph
(A), by striking meet the Restoration Goal as described in part I of
this subtitle
and inserting recover Restoration Flows as
described in this part
;
in subparagraph (C)—
by
striking the Interim or Restoration Flows authorized in part I of this
subtitle
and inserting Restoration Flows authorized in this
part
; and
by
striking , and for ensuring appropriate adjustment in the recovered
water account pursuant to section 10004(a)(5)
.
Additional Authorities
Section 10203 of the San Joaquin River Restoration Settlement Act (Public Law 111–11) is amended—
in subsection (b)—
by striking
section 10004(a)(4)
and inserting section
10004(a)(3)
; and
by striking
, provided
and all that follows through section
10009(f)(2)
; and
by striking subsection (c).
Repayment contracts and acceleration of repayment of construction costs
Repayment contracts and acceleration of repayment of construction costs
Conversion of contracts
Not later than 1 year after enactment, the Secretary of the Interior, upon request of the contractor, shall convert all existing long-term Central Valley Project contracts entered under subsection (e) of section 9 of the Act of August 4, 1939 (53 Stat. 1196), to a contract under subsection (d) of section 9 of said Act (53 Stat. 1195), under mutually agreeable terms and conditions.
Upon request of the contractor, the Secretary is further authorized to convert, not later than 1 year after enactment, any Central Valley Project long-term contract entered under subsection (c)(2) of section 9 of the Act of August 4, 1939 (53 Stat. 1194), to a contract under subsection (c)(1) of section 9 of said Act, under mutually agreeable terms and conditions.
All contracts entered into pursuant to paragraph (1) shall—
require the repayment, either in lump sum or by accelerated prepayment, of the remaining amount of construction costs identified in the most current version of the Central Valley Project Schedule of Irrigation Capital Allocations by Contractor, as adjusted to reflect payments not reflected in such schedule, and properly assignable for ultimate return by the contractor, no later than January 31, 2013, or if made in approximately equal annual installments, no later than January 31, 2016; such amount to be discounted by the Treasury Rate. An estimate of the remaining amount of construction costs as of January 31, 2013, as adjusted, shall be provided by the Secretary of the Interior to each contractor no later than 180 days after enactment;
require that, notwithstanding subsection (c)(2), construction costs or other capitalized costs incurred after the effective date of the converted contract or not reflected in the schedule referenced in subparagraph (A), and properly assignable to such contractor, shall be repaid in not more than 5 years after notification of the allocation if such amount is a result of a collective annual allocation of capital costs to the contractors exercising contract conversions under this subsection of less than $5,000,000. If such amount is $5,000,000 or greater, such cost shall be repaid as provided by applicable reclamation law, provided that the reference to the amount of $5,000,000 shall not be a precedent in any other context; and
provide that power revenues will not be available to aid in repayment of construction costs allocated to irrigation under the contract.
All contracts entered into pursuant to paragraph (2) shall—
require the repayment in lump sum of the remaining amount of construction costs identified in the most current version of the Central Valley Project Schedule of Municipal and Industrial Water Rates, as adjusted to reflect payments not reflected in such schedule, and properly assignable for ultimate return by the contractor, no later than January 31, 2016. An estimate of the remaining amount of construction costs as of January 31, 2016, as adjusted, shall be provided by the Secretary of the Interior to each contractor no later than 180 days after enactment; and
require that, notwithstanding subsection (c)(2), construction costs or other capitalized costs incurred after the effective date of the contract or not reflected in the schedule referenced in subparagraph (A), and properly assignable to such contractor, shall be repaid in not more than 5 years after notification of the allocation if such amount is a result of a collective annual allocation of capital costs to the contractors exercising contract conversions under this subsection of less than $5,000,000. If such amount is $5,000,000 or greater, such cost shall be repaid as provided by applicable reclamation law, provided that the reference to the amount of $5,000,000 shall not be a precedent in any other context.
Final adjustment
The amounts paid pursuant to subsection (a) shall be subject to adjustment following a final cost allocation by the Secretary of the Interior upon completion of the construction of the Central Valley Project. In the event that the final cost allocation indicates that the costs properly assignable to the contractor are greater than what has been paid by the contractor, the contractor shall be obligated to pay the remaining allocated costs. The term of such additional repayment contract shall be no less than 1 year and no more than 10 years, however, mutually agreeable provisions regarding the rate of repayment of such amount may be developed by the parties. In the event that the final cost allocation indicates that the costs properly assignable to the contractor are less than what the contractor has paid, the Secretary of the Interior is authorized and directed to credit such overpayment as an offset against any outstanding or future obligation of the contractor.
Applicability of certain provisions
Notwithstanding any repayment obligation under subsection (a)(3)(B) or subsection (b), upon a contractor’s compliance with and discharge of the obligation of repayment of the construction costs as provided in subsection (a)(3)(A), the ownership and full-cost pricing limitations of any provision of Federal reclamation law shall not apply to lands in such district.
Notwithstanding any repayment obligation under paragraph (3)(B) or paragraph (4)(B) of subsection (a), or subsection (b), upon a contractor’s compliance with and discharge of the obligation of repayment of the construction costs as provided in paragraphs (3)(A) and (4)(A) of subsection (a), such contractor shall continue to pay applicable operation and maintenance costs and other charges applicable to such repayment contracts pursuant to the then-current rate-setting policy and applicable law.
Certain repayment obligations not altered
Implementation of the provisions of this section shall not alter the repayment obligation of any other long-term water service or repayment contractor receiving water from the Central Valley Project, or shift any costs that would otherwise have been properly assignable to any contractors absent this section, including operations and maintenance costs, construction costs, or other capitalized costs incurred after the date of enactment of this Act, to other such contractors.
Statutory interpretation
Nothing in this part shall be construed to affect the right of any long-term contractor to use a particular type of financing to make the payments required in paragraph (3)(A) or paragraph (4)(A) of subsection (a).
Definition of treasury rate
For purposes of this section, Treasury
Rate
shall be defined as the 20-year Constant Maturity Treasury rate
published by the United States Department of the Treasury as of October 1,
2012.
Bay-Delta Watershed water rights preservation and protection
Water rights and area-of-origin protections
Notwithstanding the provisions of this Act, Federal reclamation law, or the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)—
the Secretary of the Interior
(Secretary
) is directed, in the operation of the Central Valley
Project, to strictly adhere to State water rights law governing water rights
priorities by honoring water rights senior to those belonging to the Central
Valley Project, regardless of the source of priority;
the Secretary is directed, in the operation of the Central Valley Project, to strictly adhere to and honor water rights and other priorities that are obtained or exist pursuant to the provisions of California Water Code sections 10505, 10505:5, 11128, 11460, and 11463; and sections 12200 to 12220, inclusive; and
any action that affects the diversion of water or involves the release of water from any Central Valley Project water storage facility taken by the Secretary or the Secretary of the Department of Commerce to conserve, enhance, recover, or otherwise protect any species listed under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) shall be applied in a manner that is consistent with water right priorities established by State law.
Sacramento River settlement contracts
In
the implementation of the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.), in the Bay-Delta and on the Sacramento River, the
Secretary and the Secretary of Commerce are directed to apply any limitations
on the operation of the Central Valley Project or to formulate any
reasonable prudent alternative
associated with the operation of
the Central Valley Project in a manner that strictly adheres to and applies the
water rights priorities for Project Water
and Base
Supply
provided for in the Sacramento River Settlement Contracts.
Article 3(i) of the Sacramento River Settlement Contracts shall not be utilized
by the United States as means to provide shortages to the Sacramento River
Settlement Contracts that are different than those provided for in Article 5(a)
of those contracts.
Sacramento River Watershed Water Service Contractors
In general
Subject to subsection (b) and the absolute priority of the Sacramento River Settlement Contractors to Sacramento River supplies over Central Valley Project diversions and deliveries to other contractors, the Secretary is directed, in the operation of the Central Valley Project, to allocate water provided for irrigation purposes to existing Central Valley Project agricultural water service contractors within the Sacramento River Watershed in compliance with the following:
Not less than 100%
of their contract quantities in a Wet
year.
Not less than 100%
of their contract quantities in an Above Normal
year.
Not less than 100%
of their contract quantities in a Below Normal
year.
Not less than 75%
of their contract quantities in a Dry
year.
Not less than 50%
of their contract quantities in a Critically Dry
year.
Protection of municipal and industrial supplies
Nothing in subsection (a) shall be deemed to (i) modify any provision of a water service contract that addresses municipal and industrial water shortage policies of the Secretary, (ii) affect or limit the authority of the Secretary to adopt or modify municipal and industrial water shortage policies, (iii) affect or limit the authority of the Secretary to implement municipal and industrial water shortage policies, or (iv) affect allocations to Central Valley Project municipal and industrial contractors pursuant to such policies. Neither subsection (a) nor the Secretary’s implementation of subsection (a) shall constrain, govern or affect, directly or indirectly, the operations of the Central Valley Project’s American River Division or any deliveries from that Division, its units or its facilities.
Definitions
In this section:
The term existing Central Valley Project agricultural water service contractors within the Sacramento River Watershed means water service contractors within the Shasta, Trinity, and Sacramento River Divisions of the Central Valley Project, that have a water service contract in effect, on the date of the enactment of this section, that provides water for irrigation.
The year type terms used in subsection (a) have the meaning given those year types in the Sacramento Valley Water Year Type (40–30–30) Index.
No redirected adverse impacts
The Secretary shall insure that there are no redirected adverse water supply or fiscal impacts to those within the Sacramento River or San Joaquin River watershed or to the State Water Project arising from the Secretary’s operation of the Central Valley Project to meet legal obligations imposed by or through any State or Federal agency, including, but not limited to those legal obligations emanating from the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or this Act, or actions or activities implemented to meet the twin goals of improving water supply or addressing environmental needs of the Bay Delta.
Miscellaneous
Precedent
Congress finds and declares that—
coordinated operations between the Central Valley Project and the State Water Project, previously requested and consented to by the State of California and the Federal Government, require assertion of Federal supremacy to protect existing water rights throughout the system; and
these circumstances are unique to California.
Passed the House of Representatives February 29, 2012.
Karen L. Haas,
Clerk
March 5, 2012
Read the second time and placed on the calendar