H.R. 5781 — Introduced in House

I 113th CONGRESS 2d Session H. R. 5781 IN THE HOUSE OF REPRESENTATIVES December 2, 2014 Mr. Valadao (for himself, Mr. Nunes, Mr. McCarthy of California, Mr. McClintock, Mr. Calvert, Mr. LaMalfa, and Mr. Costa) introduced the following bill; which was referred to the Committee on Natural Resources A BILL To provide short-term water supplies to drought-stricken California. 1. Short title; table of contents (a) Short title This Act may be cited as the California Emergency Drought Relief Act of 2014. (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Title I—California Emergency Drought Relief Sec. 101. Definitions. Sec. 102. Emergency projects. Sec. 103. Temporary operational flexibility for first few storms of the water year. Sec. 104. Progress report. Sec. 105. Status of surface storage studies. Title II—Protection of Third-Party Water Rights Sec. 201. Offset for State Water Project. Sec. 202. Area of origin protections. Sec. 203. No redirected adverse impacts. Sec. 204. Allocations For Sacramento Valley Contractors. Title III—Miscellaneous Provisions Sec. 301. Effect on existing obligations. Sec. 302. Termination of authorities. I California Emergency Drought Relief 101. Definitions In this title: (1) Central valley project The term Central Valley Project has the meaning given the term in section 3403 of the Central Valley Project Improvement Act (106 Stat. 4707). (2) Delta The term Delta means the Sacramento-San Joaquin Delta and the Suisun Marsh, as defined in sections 12220 and 29101 of the California Public Resources Code. (3) Negative impact on the long-term survival The term negative impact on the long-term survival means to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. (4) Salmonid biological opinion The term salmonid biological opinion means the biological opinion issued by the National Marine Fisheries Service on June 4, 2009. (5) Secretaries The term Secretaries means— (A) the Secretary of Commerce; and (B) the Secretary of the Interior. (6) Smelt biological opinion The term smelt biological opinion means the biological opinion on the Long-Term Operational Criteria and Plan for coordination of the Central Valley Project and State Water Project issued by the United States Fish and Wildlife Service on December 15, 2008. (7) State The term State means the State of California. (8) State water project The term State Water Project means the water project described by California Water Code section 11550 et seq. and operated by the California Department of Water Resources. 102. Emergency projects (a) In general Subject to the priority of individuals or entities, including those with Sacramento River Settlement Contracts, that have priority to the diversion and use of water over water rights held by the United States for operations of the Central Valley Project and over rights held by the State for operations of the State Water Project and the United States obligation to make a substitute supply of water available to the San Joaquin River Exchange Contractors, the Secretaries shall direct the operations of the Central Valley Project and allow the State Water Project to provide the maximum quantity of water supplies possible to Central Valley Project agricultural, municipal and industrial, and refuge service and repayment contractors, and State Water Project contractors, by approving, consistent with applicable laws (including regulations)— (1) any project or operations to provide additional water supplies if there is any possible way whatsoever that the Secretaries can do so unless the project or operations constitute a highly inefficient way of providing additional water supplies; and (2) any projects or operations as quickly as possible based on available information to address the emergency conditions. (b) Mandate In carrying out subsection (a), the applicable Secretary shall— (1) authorize and implement actions to ensure that the Delta Cross Channel Gates remain open to the maximum extent practicable using findings from the United States Geological Survey on diurnal behavior of juvenile salmonids, timed to maximize the peak flood tide period and provide water supply and water quality benefits, consistent with operational criteria and monitoring set forth in the California State Water Resources Control Board’s Order Approving a Temporary Urgency Change in License and Permit Terms in Response to Drought Conditions, effective January 31, 2014, or a successor order; (2) (A) implement turbidity control strategies that allow for increased water deliveries for the Central Valley Project and State Water Project while avoiding a negative impact on the long-term survival delta smelt (Hypomesus transpacificus) due to entrainment at Central Valley Project and State Water Project pumping plants; (B) operating within the ranges provided for in the smelt biological opinion and the salmonid biological opinion to minimize water supply reductions for the Central Valley Project and the State Water Project, manage reverse flow in Old and Middle Rivers at −5,000 cubic feet per second (cfs) unless current scientific data indicate a less negative Old and Middle River flow is necessary to avoid a negative impact on the long-term survival of the listed species; and (C) show in writing that any determination to manage OMR reverse flow at rates less negative than −5000 cubic feet per second is necessary to avoid a significant negative impact on the long-term survival of the Delta smelt, including an explanation of the data examined and the connection between those data and the choice made prior to reducing pumping to a rate less negative than −5000 cfs; (3) adopt a 1:1 inflow to export ratio for the increment of increased flow of the San Joaquin River, as measured as a 3-day running average at Vernalis during the period from April 1 through May 31, resulting from voluntary sale, transfers, or exchanges of water from agencies with rights to divert water from the San Joaquin River or its tributaries on the condition that a proposed sale, transfer, or exchange under this paragraph may only proceed if the Secretary of the Interior determines that the environmental effects of the proposed sale, transfer, or exchange are consistent with effects permissible under applicable law (including regulations), and provided that Delta conditions are suitable to allow movement of the acquired, transferred, or exchanged water through the Delta consistent with the Central Valley Project’s and the State Water Project’s permitted water rights; (4) issue all necessary permit decisions under the authority of the Secretaries within 30 days of receiving a completed application by the State to place and use temporary barriers or operable gates in Delta channels to improve water quantity and quality for Central Valley Project and State Water Project contractors and other water users, which barriers or gates should provide benefits for species protection and in-Delta water user water quality and shall be designed such that formal consultations under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) would not be necessary; (5) (A) complete all requirements under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) necessary to make final permit decisions on water transfer requests associated with voluntarily fallowing nonpermanent crops in the State, within 30 days of receiving such a request; and (B) allow any water transfer request associated with fallowing to maximize the quantity of water supplies available for nonhabitat uses as long as the fallowing and associated water transfer are in compliance with applicable Federal laws (including regulations); (6) allow any North of Delta agricultural water service contractor with unused Central Valley Project water to take delivery of such unused water through April 15, of the contract year immediately following the contract year in which such water was allocated, if— (A) the contractor requests the extension; and (B) the requesting contractor certifies that, without the extension, the contractor would have insufficient supplies to adequately meet water delivery obligations; (7) to the maximum extent possible based on the availability and quality of groundwater and without causing land subsidence— (A) meet the Level 2 and Level 4 water supply needs of units of the National Wildlife Refuge System in the Central Valley of California, the Gray Lodge, Los Banos, Volta, North Grasslands, and Mendota State wildlife management areas, and the Grasslands Resources Conservation District in the Central Valley of California through the improvement or installation of wells to use groundwater resources and the purchase of water from willing sellers; and (B) make a quantity of Central Valley Project water obtained from the measures implemented under subparagraph (A) available to Central Valley Project water service contractors; and (8) implement instream and offsite projects in the Delta and upstream in the Sacramento River and San Joaquin basins, in coordination with the California Department of Water Resources and the California Department of Fish and Wildlife, that offset the effects on species listed as threatened or endangered under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) due to actions taken under this Act. (c) Other agencies To the extent that a Federal agency other than agencies headed by the Secretaries has a role in approving projects described in subsections (a) and (b), the provisions of this section shall apply to those Federal agencies. (d) Accelerated project decision and elevation (1) In general Upon the request of the State, the heads of Federal agencies shall use the expedited procedures under this subsection to make final decisions relating to a Federal project or operation to provide additional water supplies or address emergency drought conditions pursuant to subsections (a) and (b). (2) Request for resolution (A) In general Upon the request of the State, the head of an agency referred to in subsection (a), or the head of another Federal agency responsible for carrying out a review of a project, as applicable, the Secretary of the Interior shall convene a final project decision meeting with the heads of all relevant Federal agencies to decide whether to approve a project to provide emergency water supplies. (B) Meeting The Secretary of the Interior shall convene a meeting requested under subparagraph (A) not later than 7 days after receiving the meeting request. (3) Notification Upon receipt of a request for a meeting under this subsection, the Secretary of the Interior shall notify the heads of all relevant Federal agencies of the request, including the project to be reviewed and the date for the meeting. (4) Decision Not later than 10 days after the date on which a meeting is requested under paragraph (2), the head of the relevant Federal agency shall issue a final decision on the project in writing. (5) Meeting convened by secretary The Secretary of the Interior may convene a final project decision meeting under this subsection at any time, at the discretion of the Secretary, regardless of whether a meeting is requested under paragraph (2). 103. Temporary operational flexibility for first few storms of the water year (a) In general Consistent with avoiding a negative impact on the long-term survival in the short-term upon listed fish species beyond the range of those authorized under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and other environmental protections under subsection (d), the Secretaries shall authorize the Central Valley Project and the State Water Project, combined, to operate at levels that result in negative Old and Middle River flows at −7500 cubic feet per second (based on United States Geological Survey gauges on Old and Middle Rivers) daily average for 28 cumulative days after October 1, as described in subsection (b). (b) Days of temporary operational flexibility The temporary operational flexibility described in subsection (a) shall be authorized on days that the California Department of Water Resources determines the daily average river flow of the Sacramento River is at, or above, 17,000 cubic feet per second as measured at the Sacramento River at Freeport gauge maintained by the United States Geologic Survey. (c) Compliance with ESA authorizations In carrying out this section, the Secretaries may continue to impose any requirements under the smelt and salmonid biological opinions during any period of temporary operational flexibility as they determine are reasonably necessary to avoid additional negative impacts on the long-term survival of a listed fish species beyond the range of those authorized under the Endangered Species Act of 1973. (d) Other environmental protections (1) The Secretaries’ actions under this section shall be consistent with applicable regulatory requirements under state law, including State Water Resources Control Board Decision 1641, as it may be implemented in any given year. (2) During the first flush of sediment out of the Delta in each water year, and provided that such determination is based upon objective evidence, OMR flow may be managed at rates less negative than −5000 cubic feet per second for a minimum duration to avoid movement of adult Delta smelt (Hypomesus transpacificus) to areas in the southern Delta that would be likely to increase entrainment at Central Valley Project and State Water Project pumping plants. (3) This section shall not affect the application of the salmonid biological opinion from April 1 to May 31, unless the Secretary of Commerce finds that some or all of such applicable requirements may be adjusted during this time period to provide emergency water supply relief without resulting in additional adverse effects beyond those authorized under the Endangered Species Act of 1973. In addition to any other actions to benefit water supply, the Secretary and the Secretary of Commerce shall consider allowing through-Delta water transfers to occur during this period. (4) During operations under this section, the Commissioner of Reclamation, in coordination with the Fish and Wildlife Service, National Marine Fisheries Service, and California Department of Fish and Wildlife, shall undertake a monitoring program and other data gathering to ensure incidental take levels are not exceeded, and to identify potential negative impacts and actions, if any, necessary to mitigate impacts of the temporary operational flexibility to species listed under the Endangered Species Act of 1973. (e) Technical adjustments to target period If, before temporary operational flexibility has been implemented on 28 cumulative days, the Secretaries operate the Central Valley Project and the State Water Project combined at levels that result in Old and Middle River flows less negative than −7500 cubic feet per second during days of temporary operational flexibility as defined in subsection (b), the duration of such operation shall not be counted toward the 28 cumulative days specified in subsection (a). (f) Emergency consultation; effect on running averages (1) If necessary to implement the provisions of this section, the Commissioner shall use the emergency consultation procedures under the Endangered Species Act of 1973 and its implementing regulation at section 402.05, title 50, Code of Federal Regulations, to temporarily adjust the operating criteria under the biological opinions, solely for the 28 cumulative days of temporary operational flexibility— (A) no more than necessary to achieve the purposes of this section consistent with the environmental protections in subsections (c) and (d); and (B) including, as appropriate, adjustments to ensure that the actual flow rates during the periods of temporary operational flexibility do not count toward the 5-day and 14-day running averages of tidally filtered daily Old and Middle River flow requirements under the biological opinions. (2) At the conclusion of the 28 cumulative days of temporary operational flexibility, the Commissioner shall not reinitiate consultation on these adjusted operations, and no mitigation shall be required, if the effects on listed fish species of these operations under this section remain within the range of those authorized under the Endangered Species Act. If the Commissioner reinitiates consultation, no mitigation measures shall be required. (g) Level of detail required for analysis In articulating the determinations required under this section, the Secretaries shall fully satisfy the requirements herein but shall not be expected to provide a greater level of supporting detail for the analysis than feasible to provide within the short time frame permitted for timely decision-making in response to changing conditions in the Delta. 104. Progress report Ninety days after the date of the enactment of this Act and every 90 days thereafter, the Secretaries shall provide a progress report describing the implementation of sections 101, 102, and 103 to the Committee on Natural Resources in the House of Representatives and the Committee on Energy and Natural Resources in the Senate. 105. Status of surface storage studies One year after the date of the enactment of this Act, the Secretary of the Interior shall provide a progress report on the status of feasibility studies undertaken pursuant to section 103(d)(1) to the Committee on Natural Resources in the House of Representatives and the Committee on Energy and Natural Resources in the Senate. The report shall include timelines for study completion, draft environmental impact statements, final environmental impact statements, and Records of Decision. II Protection of Third-Party Water Rights 201. Offset for State Water Project (a) Implementation impacts The Secretary of the Interior shall confer with the California Department of Fish and Wildlife in connection with the implementation of this Act on potential impacts to any consistency determination for operations of the State Water Project issued pursuant to California Fish and Game Code section 2080.1. (b) Additional yield If, as a result of the application of this Act, the California Department of Fish and Wildlife— (1) revokes the consistency determinations pursuant to California Fish and Game Code section 2080.1 that are applicable to the State Water Project; (2) amends or issues one or more new consistency determinations pursuant to California Fish and Game Code section 2080.1 in a manner that directly or indirectly results in reduced water supply to the State Water Project as compared with the water supply available under the Smelt Biological Opinion and the Salmonid Biological Opinion; or (3) requires take authorization under section 2081 for operation of the State Water Project in a manner that directly or indirectly results in reduced water supply to the State Water Project as compared with the water supply available under the Smelt Biological Opinion and the Salmonid Biological Opinion, and as a consequence of the Department’s action, Central Valley Project yield is greater than it would have been absent the Department’s actions, then that additional yield shall be made available to the State Water Project for delivery to State Water Project contractors to offset losses resulting from the Department’s action. (c) Notification related to environmental protections The Secretary of the Interior shall immediately notify the Director of the California Department of Fish and Wildlife in writing if the Secretary of the Interior determines that implementation of the Biological Opinions consistent with this Act reduces environmental protections for any species covered by the opinions. 202. Area of origin protections (a) In general The Secretary of the Interior is directed, in the operation of the Central Valley Project, to adhere to California’s water rights laws governing water rights priorities and to honor water rights senior to those held by the United States for operation of the Central Valley Project, regardless of the source of priority, including any appropriative water rights initiated prior to December 19, 1914, as well as water rights and other priorities perfected or to be perfected pursuant to California Water Code Part 2 of Division 2. Article 1.7 (commencing with section 1215 of chapter 1 of part 2 of division 2, sections 10505, 10505.5, 11128, 11460, 11461, 11462, and 11463, and sections 12200 to 12220, inclusive). (b) Diversions Any action undertaken by the Secretary of the Interior or the Secretary of Commerce pursuant to both this Act and section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531, et seq.) that requires that diversions from the Sacramento River or the San Joaquin River watersheds upstream of the Delta be bypassed shall not be undertaken in a manner that alters the water rights priorities established by California law. (c) NEPA Nothing in this title alters the existing authorities provided to and obligations placed upon the Federal Government under the Endangered Species Act of 1973 (16 U.S.C. 1531, et seq.), as amended. (d) Contracts With respect to individuals and entities with water rights on the Sacramento River, the mandates of this section may be met, in whole or in part, through a contract with the Secretary executed pursuant to section 14 of Public Law 76–260, 53 Stat. 1187 (43 U.S.C. 389) that is in conformance with the Sacramento River Settlement Contracts renewed by the Secretary in 2005. 203. No redirected adverse impacts (a) In general The Secretary of the Interior shall ensure that, except as otherwise provided for in a water service or repayment contract, actions taken in compliance with legal obligations imposed pursuant to or as a result of this Act, including such actions under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and other applicable Federal and State laws, shall not directly or indirectly— (1) result in the involuntary reduction of water supply or fiscal impacts to individuals or districts who receive water from either the State Water Project or the United States under water rights settlement contracts, exchange contracts, water service contracts, repayment contracts, or water supply contracts; or (2) cause redirected adverse water supply or fiscal impacts to those within the Sacramento River watershed, the San Joaquin River watershed or the State Water Project service area. (b) Costs To the extent that costs are incurred solely pursuant to or as a result of this Act and would not otherwise have been incurred by any entity or public or local agency or subdivision of the State of California, such costs shall not be borne by any such entity, agency, or subdivision of the State of California, unless such costs are incurred on a voluntary basis. (c) Rights and obligations not modified or amended Nothing in this Act shall modify or amend the rights and obligations of the parties to any existing— (1) water service, repayment, settlement, purchase, or exchange contract with the United States, including the obligation to satisfy exchange contracts and settlement contracts prior to the allocation of any other Central Valley Project water; or (2) State Water Project water supply or settlement contract with the State. 204. Allocations For Sacramento Valley Contractors (a) Allocations (1) In general Subject to paragraph (2) and subsection (b), the Secretary of the Interior 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: (A) Not less than 100 percent of their contract quantities in a Wet year. (B) Not less than 100 percent of their contract quantities in an Above Normal year. (C) Not less than 100 percent of their contract quantities in a Below Normal year that is preceded by an Above Normal or a Wet year. (D) Not less than 50 percent of their contract quantities in a Dry year that is preceded by a Below Normal, an Above Normal, or a Wet year. (E) In all other years not identified herein, the allocation percentage for existing Central Valley Project agricultural water service contractors within the Sacramento River Watershed shall not be less than twice the allocation percentage to south-of-Delta Central Valley Project agricultural water service contractors, up to 100 percent; provided, that nothing herein shall preclude an allocation to existing Central Valley Project agricultural water service contractors within the Sacramento River Watershed that is greater than twice the allocation percentage to South-of-Delta Central Valley Project agricultural water service contractors. (2) Conditions The Secretary’s actions under paragraph (a) shall be subject to— (A) the priority of individuals or entities with Sacramento River water rights, including those with Sacramento River Settlement Contracts, that have priority to the diversion and use of Sacramento River water over water rights held by the United States for operations of the Central Valley Project; (B) the United States obligation to make a substitute supply of water available to the San Joaquin River Exchange Contractors; and (C) the Secretary of the Interior’s obligation to make water available to managed wetlands pursuant to section 3406(d) of the Central Valley Project Improvement Act, (Public Law 102–575). (b) Protection of municipal and industrial supplies Nothing in subsection (a) shall be deemed to— (1) modify any provision of a water service contract that addresses municipal and industrial water shortage policies of the Secretary; (2) affect or limit the authority of the Secretary of the Interior to adopt or modify municipal and industrial water shortage policies; (3) affect or limit the authority of the Secretary of the Interior to implement municipal and industrial water shortage policies; or (4) affect allocations to Central Valley Project municipal and industrial contractors pursuant to such policies. Neither subsection (a) nor the Secretary of the Interior’s implementation of subsection (a) shall constrain, govern or affect, directly or indirectly, the operations of the Central Valley Project’s American River Division or any deliveries from that Division, its units or its facilities. (c) No effect on allocations This section shall not— (1) affect the allocation of water to Friant Division contractors; or (2) result in the involuntary reduction in contract water allocations to individuals or entities with contracts to receive water from the Friant Division. (d) Program for water rescheduling The Secretary of the Interior shall direct that the United States Bureau of Reclamation develop and implement a program, not later than one year after the date of the enactment of this Act, to provide for the opportunity for existing Central Valley Project agricultural water service contractors within the Sacramento River Watershed to reschedule water, provided for under their Central Valley Project water service contracts, from one year to the next. (e) Definitions In this section: (1) The term existing Central Valley Project agricultural water service contractors within the Sacramento River Watershed means water service contractors within the Shasta, Trinity, and Sacramento River Divisions of the Central Valley Project, that have a water service contract in effect, on the date of the enactment of this section, that provides water for irrigation. (2) The year type terms used in subsection (a) have the meaning given those year types in the Sacramento Valley Water Year Type (40–30–30) Index. III Miscellaneous Provisions 301. Effect on existing obligations Nothing in this Act preempts or modifies any existing obligation of the United States under Federal reclamation law to operate the Central Valley Project in conformity with State law, including established water rights priorities. 302. Termination of authorities This Act shall expire on September 30, 2016, or the date on which the Governor of the State suspends the state of drought emergency declaration, whichever is later.