House Hearing, 109TH Congress - The San Joaquin River Restoration Settlement Act

THE SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON WATER AND POWER

OF THE
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
Thursday, September 21, 2006
Serial No. 109-63

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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska
Jim Saxton, New Jersey
Elton Gallegly, California
John J. Duncan, Jr., Tennessee
Wayne T. Gilchrest, Maryland
Ken Calvert, California
Barbara Cubin, Wyoming
Vice Chair
George P. Radanovich, California
Walter B. Jones, Jr., North Carolina
Chris Cannon, Utah
John E. Peterson, Pennsylvania
Jim Gibbons, Nevada
Greg Walden, Oregon
Thomas G. Tancredo, Colorado
J.D. Hayworth, Arizona
Jeff Flake, Arizona
Rick Renzi, Arizona
Stevan Pearce, New Mexico
Henry Brown, Jr., South Carolina
Thelma Drake, Virginia
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa
Neil Abercrombie, Hawaii
Solomon P. Ortiz, Texas
Frank Pallone, Jr., New Jersey
Donna M. Christensen, Virgin Islands
Ron Kind, Wisconsin
Grace F. Napolitano, California
Tom Udall, New Mexico
Raul M. Grijalva, Arizona
Madeleine Z. Bordallo, Guam
Jim Costa, California
Charlie Melancon, Louisiana
Dan Boren, Oklahoma
George Miller, California
Edward J. Markey, Massachusetts
Peter A. DeFazio, Oregon
Jay Inslee, Washington
Mark Udall, Colorado
Dennis Cardoza, California
Stephanie Herseth, South Dakota
Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
SUBCOMMITTEE ON WATER AND POWER

GEORGE P. RADANOVICH, California, Chairman
GRACE F. NAPOLITANO, California, Ranking Democrat Member
Ken Calvert, California
Barbara Cubin, Wyoming
Greg Walden, Oregon
Thomas G. Tancredo, Colorado
J.D. Hayworth, Arizona
Stevan Pearce, New Mexico
Cathy McMorris, Washington
Vice Chair
Louie Gohmert, Texas
Vacancy
Richard W. Pombo, California, ex officio
Raul M. Grijalva, Arizona

Jim Costa, California
George Miller, California
Mark Udall, Colorado
Dennis A. Cardoza, California
Vacancy
Vacancy
Nick J. Rahall II, West Virginia, ex officio
(II)
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CONTENTS
Page
Hearing held on Thursday, September 21, 2006 ...................................................

Statement of Members:
Cardoza, Hon. Dennis, a Representative in Congress from the State of
California .......................................................................................................
Letter submitted for the record ................................................................
Costa, Hon. Jim, a Representative in Congress from the State of
California .......................................................................................................
Miller, Hon. George, a Representative in Congress from the State of
California .......................................................................................................
Napolitano, Hon. Grace F., a Representative in Congress from the State
of California ...................................................................................................
Nunes, Hon. Devin, a Representative in Congress from the State of
California .......................................................................................................
Pombo, Hon. Richard W., a Representative in Congress from the State
of California ...................................................................................................
Radanovich, Hon. George P., a Representative in Congress from the State
of California ...................................................................................................
Prepared statement of ...............................................................................
Statement of Witnesses:
Birmingham, Thomas, General Manager/General Counsel, Westlands
Water District, Fresno, California ...............................................................
Candee, Hamilton, Senior Attorney, Co-Director, Western Water Project,
Natural Resources Defense Council, San Francisco, California ................
Response to questions submitted for the record .....................................
Chedester, Steve, Executive Director, San Joaquin River Exchange
Contractors Water Authority, Los Banos, California .................................
Chrisman, Hon. Mike, Secretary for Resources, California Resources
Agency, Sacramento, California ...................................................................
Peltier, Jason, Principal Deputy Assistant Secretary for Water and
Science, U.S. Department of the Interior, Washington, D.C. ....................
Robbins, Ken, General Counsel, Merced Irrigation District, Merced,
California .......................................................................................................
Short, Allen, General Manager, Modesto Irrigation District, and
Coordinator, San Joaquin Tributaries Association, Modesto, California .
Skinner, Lynn, Owner, Wolfsen Farms, Los Banos, California ....................
Upton, Kole, Chairman, Friant Water Users Authority, Chowchilla,
California .......................................................................................................
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(III)
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Page
Statement of WitnessesContinued
Upton, Kole, Chairman, Friant Water Users Authority, Chowchilla,
California Continued
Wolk, Hon. Lois G., Chair, Committee on Water, Parks and Wildlife,
California State Assembly, Sacramento, California ...................................
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OVERSIGHT HEARING ON THE SAN JOAQUIN

RIVER RESTORATION SETTLEMENT ACT
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Resources
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:09 a.m. in Room

1324, Longworth House Office Building, Hon. George Radanovich
[Chairman of the Subcommittee] presiding.
Present: Representatives Radanovich, Napolitano, Pombo, Costa,
Miller and Cardoza.
STATEMENT OF THE HON. GEORGE P. RADANOVICH, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF
CALIFORNIA
Mr. RADANOVICH. Good morning, and welcome to the Subcommittee on Water and Power. It will now come to order.
Todays hearing is a crucial step toward resolving a long and bitter war in the San Joaquin Valley. For 18 years a legal battle to
restore a salmon fishery on the San Joaquin River has been fought
in the courts. Hard-working family farmers whose future depends
on the dam have been left in doubt, and fish restoration is nothing
more than a pipe dream for other Californians.
In the meantime, many of us were worried that a judicial decision would be controversial and be appealed to the Supreme Court,
costing millions of dollars more, and leaving the issue unresolved
for many more years. For that reason, Senator Feinstein and I
joined together last year to urge the parties to take their fight out
of the courtroom and back to the negotiating table.
Friant Water Users Authority, the NRDC, and the U.S. Government began to sit down in good faith to try to end years of stalemate. The result is what we have here before us today. The San
Joaquin River Restoration Settlement is an unprecedented effort to
restore a dead fishery and give certainty to many Friant farmers.
Now that much of the hard work has been done in California, it
is up to us in Congress to bring the settlement across the finish
line and provide the necessary funding for the improvements. We
have a lot of work to do, and this hearing today is part of our
recent efforts to make this settlement a reality.
(1)
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As we will see, the settlement has many benefits, but it may also
have some unintended consequences. That is why we have asked
some of the best and the brightest to speak here today about the
need to address third-party concerns. And I am confident that we
can resolve these concerns if we all continue to work together in
good faith, as we have for the last 13 months.
As we march toward our objective, it is important not to repeat
Congresss past mistakes of enacting vague legislation, leaving the
courts to decide the details. We dont want another CVPIA on our
hands, which will result in new water litigation, which would be
the goal of this hearing, the resulting legislation.
We have an historic opportunity to put an end to this long episode in Californias water wars. Time is very limited to pass this
settlement into law, but we will make every effort to resolve the
remaining concerns, particularly with respect to third-party
impacts and the funding of the project.
I commend those who have worked so hard on this effort. The
more recent negotiations occurred over the past 13 months, and the
success in the settlement was and will continue to be found in a
series of 10-yard passes, not one Hail Mary pass.
Diligent efforts by Kole Upton, Chairman of the Friant Water
Users Authority, Dan Dooley, a Friant attorney, and Hal Candee
with the NRDC, and others from the State and Federal Governments have helped achieve this settlement. Now those of us here
in Congress have to close the gap on the remaining critical issues.
Let us make it happen.
I now defer to the Chairman of the full Resources Committee,
Richard Pomboexcuse me, I am sorry. I will now recognize our
Ranking Member, Grace Napolitano, for her opening statement.
Grace?
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, Chairman,
Subcommittee on Water and Power
Todays hearing is a crucial step towards resolving a long and bitter war in the
San Joaquin Valley.
For eighteen years, a legal battle to restore a salmon fishery on the San Joaquin
River has been fought in the courts. Hard-working Valley farm families whose futures depend on the Dam have been left in doubt and fish restoration was nothing
more than a pipe dream for many other Californians. In the meantime, many of us
were worried that a judicial decision would be controversial and be appealed to the
Supreme Court, costing millions more and leaving the issue unresolved for many
more years.
For that reason, Senator Feinstein and I joined together last year to urge the parties to take their fight out of the courtroom and back to the negotiating table. Friant
Water Users Authority, NRDC and the U.S. government began to sit down in good
faith to try and end years of stalemate. The result is what we have here before us
today. The San Joaquin River Restoration Settlement is an unprecedented effort to
restore a dead fishery and gives certainty to Friant farmers.
Now that much of the hard work has been done in California, its up to Congress
to bring the settlement across the finish line and provide the necessary funding. We
have a lot of work to do. This hearing is part of our recent efforts to make the settlement a reality. As we will see, the settlement has many benefits, but it may also
have some unintended consequences. Thats why weve asked some of the best and
brightest to speak today about the need to address third-party concerns. Im
confident we can resolve these concerns if we all continue to work in good faith
together.
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As we march toward our objective, its important not to repeat Congress past mistakes of enacting vague legislationleaving the courts to decide the details. We
dont need another CVPIA on our hands and new water litigation.
We have an historic opportunity to put an end to this long episode of California
water wars. Time is very limited to pass the settlement into law, but we will make
very effort to resolve remaining concerns, particularly with respect to third party
impacts and the funding of the project.
I commend those who worked so hard on this effort. The more recent negotiations
occurred over the past 13 months, and the success in the settlement was and will
continue to be found in a series of 10 yard passes, not one Hail Mary pass.
Diligent efforts by Kole Upton, Chairman of the Friant Water Users Authority,
Dan Dooley, a Friant Attorney, Hal Candee, with NRDC, and others from the state
and federal governments helped achieve the settlement. Now those of us here in
Congress have to close the gap on the remaining critical issues. Lets make it
happen.
STATEMENT OF THE HON. GRACE F. NAPOLITANO, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF
CALIFORNIA
Ms. NAPOLITANO. Thank you, Mr. Chair. I first want to recognize

the hard work that all the parties have put into this, actually the
settling parties put into this settlement. But most of all I wish to
thank my Chair, because I know he put a lot of hard work in it;
and of course Senator Feinstein, with whom he was able to sit
down and work through the settlement.
And whether or not you agree with the terms of it or how it
might affect anybody, yourselves, there is no question that many
of our witnesses this morning have put heart and soul into the
agreement. Making any change, big or small, to the Western Water
Policy is a very difficult and a very slow process, and I truly appreciate the hard work that has gone into the settlement, and the
commitment of the settling parties to its success.
I am a very strong supporter of the settlement, and I assure you
that we need to see the San Joaquin River brought back to life, to
see the fish in the river, and to end the costly non-productive lawsuits. They must stop.
We have an historic opportunity to repair some profound environmental damage, and we should take advantage of that opportunity, and this will create a win-win situation for all. But it has
taken many years to get this settlement pulled together, and I
think we all have to recognize that it will take us here in Congress
more than just a few weeks to sort out the many complex issues.
I do support the settlement, but I am not about to be rushed into
approving the settlement until we give full consideration to the
issues that will be raised by our second panel of witnesses, and I
am looking forward to their testimony.
I will work hard for the enactment of the settlement, with reasonable safeguards to protect the interests of those who are not
parties to the settlement. And I do look forward to the testimony.
Mr. RADANOVICH. Thank you, Mrs. Napolitano. I now defer to the
Chairman of the full Committee, Mr. Richard Pombo.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. POMBO. Thank you. I want to congratulate the Chairman for

all of his hard work on this and his efforts to bring this to a close.
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And I commend the parties that worked on the settlement for finding a solution outside of litigation, because I believe that that is
the right way to settle this.
And the settlement does bring certainty to Friant water users,
and it helps many in the Delta. I know many of my constituents
have expressed support for the settlement. They believe that this
is the direction that we need to go.
But the problem that we have in front of us is that it does bring
uncertainty to third parties who could be affected, including many
of my constituents in the Delta.
All of the parties agree on the need to restore the river and to
restore the salmon fishery, and that is something that I believe
that this committee will move forward on helping to settle that
part of the agreement. And all parties theoretically agree that we
need to protect the third parties who were not part of this original
agreement, and that is another area I believe this committee will
move forward on.
This hearing is an effort for all of us to hear what concerns people have, what solutions, possible solutions are brought to the
table, and that is something I look forward to working with all of
you on. And I hope that those who worked so hard on this settlement over so many years have the ability to come to a conclusion.
It would make our job easier.
But at some point this committee is going to have to step forward
with a legislative solution. And I am hoping that we can take a lot
of the work that went into this settlement and put that in the legislation. But all of us have a responsibility not only to our constituents, but to the taxpayers of the entire country, and we have to
take that into account.
Todays hearing is a start of the Congressional process as we
move forward working with the Subcommittee Chairman, the
Ranking Member, the other Members from California, and our colleagues from across the country. We will come up with a legislative
package that settles this.
And I appreciate all of the hard work that has gone into this,
especially by those who worked on it and by the Chairman of the
Subcommittee. And I yield back.
Mr. RADANOVICH. Thank you, Mr. Chairman. I ask unanimous
consent that the gentleman from California, Mr. Nunes, be allowed
to join us on the dais and participate in todays hearing. Hearing
no objection, so ordered. Right?
I welcome our colleague from California, Mr. Nunes. I will get to
you for your opening statement. I defer to Mr. Miller for his first.
And you may begin.
STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. MILLER. Thank you, Mr. Chairman. And I want to commend

you for this hearing, but more importantly for all of the work that
you and other Members of our Committee from the Central Valley
have put in on behalf of this effort, and certainly to those that we
will be hearing from this morning who have spent more hours than
God allowed them to try and negotiate this out. And I think it is
commendable what they have done. I share the enthusiasm for it,
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and certainly the hope and the desire that we can bring it to a
successful conclusion outside of litigation. And I look forward to
reading the testimony.
Unfortunately, I am going to have to go to an Education Committee hearing that is called, that I requested. I didnt know they
would be on the same day. But anyway, so I look forward to reading the testimony. And also, I look forward to that discussion of the
remaining issues that have not yet been tentativelyand I understand that it is not done until it is all donebut have been tentatively resolved.
Certainly I am very deeply concerned with all that is going on
in the Delta, that we not undermine the opportunities that we may
have, that we will have to take out of necessity to try and restore
the health of the Delta. Everyone in this room recognizes the attention that it has gotten over the last year, as it has been headed for
a collapse. So I am very concerned that these agreements be consistent with the protections and the health of the Delta region of
our state.
I think that is all possible. And again, with all of the positive
energy and all of the effort that has been made to date, I think we
can accomplish that.
I would like to certainly welcome my Assemblyperson, Lois Wolk,
here from the California Assembly, and her committee, for her
input on some of the ramifications of the tentative agreement.
Thank you very much, Mr. Chairman.
Mr. RADANOVICH. Thank you, Mr. Miller. Mr. Nunes.
STATEMENT OF THE HON. DEVIN NUNES, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. NUNES. Thank you, Mr. Chairman. I want to thank you for
your leadership on this issue. If it would not have been for all your
hard work on this, we wouldnt be to this point yet, so I want to
thank you for that.
I have a letter that I sent to Chairman Pombo last week that I
would like to submit for the record that basically states a lot of my
concerns on the issue.
Mr. RADANOVICH. If there is no objection, so ordered.
Mr. NUNES. Essentially what it comes down to is, and not to reiterate what Mr. Pombo has already said, but this agreement is a
step in the right direction. I think that most of the parties involved
want to rewet the river. Most of the parties involved want to ensure that a salmon run comes back, and that there are no thirdparty impacts.
And the Congress needs to take its time. And I know that the
time is short, because I know that we need to get this done by the
end of the year. But I think todays hearing will be a start. And
hopefully, if not next week, after the election we can come back and
hopefully get this done by the end of the year.
And with that, I yield back, Mr. Chairman.
[The letter submitted for the record by Mr. Nunes follows:]
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Mr. RADANOVICH. Thank you, Mr. Nunes. Mr. Cardoza.

STATEMENT OF THE HON. DENNIS CARDOZA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
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Mr. CARDOZA. Thank you, Mr. Chairman. I would like to start

today by thanking you for holding this hearing, and commend you
for the work that you and Senator Feinstein have done encouraging
the parties to reopen the settlement and the discussions almost a
year ago. I would also like to thank Chairman Pombo for his good
offices in this effort, as well.
I want to start as well by applauding the parties. They have
worked hard, they have worked diligently, as you have all said.
8
And we are here because of their efforts to bring this resolution to
this problem.
The litigation has created an atmosphere of uncertainty and has
not been beneficial for the environment or interested parties. Although the settlement appears to resolve most of the issues among
the parties to the litigation, it raises another set of issues for downstream landowners, for flood control systems, and for water districts.
Additionally, the agreement could impose significant costs, in the
millions, for downstream landowners and flood control operations,
and would also have an untold impact on water delivery systems
in the state.
On February 13 of this year, I wrote a letter to the Department
of the Interior that I would like to insert into the record at this
time.
Mr. RADANOVICH. There being no objection, so ordered.
Mr. CARDOZA. It raised third-party concerns, and requested that
these issues be resolved as part of the settlement.
Although the settling parties have met with representatives of
the impacted groups prior to coming to an agreement, several significant issues were not addressed in the settlement. Specifically,
resolution of the Endangered Species Act issues; reintroduction of
a Spring Run Salmon into one river system could end up causing
Endangered Species Act impacts and resulting water supply impacts on the tributaries, as well as the Delta.
Feasibility. Reach 4B of the river does not have the capacity at
this time to handle increased flows. An alternative is the flood control bypass system, but using the bypass system will result in significant potential flood impacts, and also has impacts potentially
with too much heat to the water, and could have other fishery impacts down the river.
Before releasing the water, a feasibility study must be conducted
to determine the best option and what funding is needed for improvements and mitigation.
Funding. In an effort to provide a more reliable funding stream,
all, rather than just a portion, of Friants capital repayment obligation should be directed toward this program.
Water rights. The settlement caps Friants exposure on water releases, but does not clearly provide for the protection of water
rights for other water users. This legislation needs to clarify that
these water rights will not be impacted by the agreement.
Process. There needs to be an ongoing, inclusive process for impacted third parties to provide meaningful input.
Temperature. If releases of water for Spring Run Salmon are not
timed properly, they could have an impact on Fall Run Salmon on
the tributaries. That is what I was referring to before. The agreement needs to provide that fisheries on the tributaries will not be
adversely impacted.
Mr. Chairman, I am supportive of this settlement if we can get
these third-party issues resolved. Yesterday many of us met with
stakeholders and Senator Feinstein in her office. I understand, and
we all were part of the discussions, where we believe significant
progress was made on all these points.
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But certainly some significant issues remain, and this has got to
be an entire deal. We cant accomplish three quarters of it, and go
home happy. We have to deal with all of the third-party impacts.
As much as I want this agreement to go forward, I need to make
it clear that I cannot support a settlement at the expense of those
not party to the litigation.
Mr. Chairman, I am very hopeful that we can get through these
things. I believe we can. With your leadership, Senator Feinsteins
leadership, and the Members of this committee, I think we can create a win-win for the Valley and for the State of California.
[The letter submitted for the record by Mr. Cardoza follows:]
10
Mr. RADANOVICH. Thank you, Mr. Cardoza. Mr. Costa.

STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
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30100.004
Mr. COSTA. Thank you very much, Mr. Chairman. I, too, want to
commend you and Senator Feinsteins efforts over the last year almost in trying to get the parties focused on reaching an agreement.
And I want to commend the parties to the suit for being able to
come to us with an out-of-court settlement agreement that I think
reflects the best efforts on the part of all those who have partaken.
When I associate myself with comments of Congressman
Cardoza, because he, I think, very specifically indicated points that
yet have to be resolved as it relates to third-party impacts, I, too,
have a letter that I would like to submit to the record that I have
addressed to the Chairman.
Mr. RADANOVICH. No objection. So ordered.
11
Mr. COSTA. Thank you very much. Mr. Chairman, in the letter
and I think it is worth underlining, because I think we have all
commented on ithaving been one who has been involved in
water-related issues in California for now over two decades, I was
15 when I started.
But the fact is I think notwithstanding the success of the parties
in reaching agreement, we all know in California that these water
issues either directly or indirectly impact others not only within
the region, but in other parts of California, because of the way that
Californias complex water system, its plumbing system is interconnected with local, state, and Federal water projects.
The fact of the matter is that you cannot have one impact, or
make changes in one area of the water plumbing system of California, with it not impacting, either directly or indirectly, other
water users.
So the third-party issues are critical. And I was pleased to hear
in yesterdays meetings an agreement around the room by all the
signers of this agreement that they had no intention of creating
third-party impacts. I think that is important to note, it is important to underline.
Now, I know there has been a lot of effort taking place, not only
yesterday afternoon, but previously, to try to reach that goal.
But let me say that the cloud that hangs over the discussions
and the ultimate determination as to whether or not I can support
this, is whether or not we are able to eliminate any third-party impacts. As I have tried to remind people in discussions that we have
had on numerous occasions, the cloud that exists is the fact that,
under CVPIA in 1992 agreement, there was a reallocation of
800,000 acre-feet of water. In that negotiated agreement there are
still today discussions as it relates to the B2 water and the environmental water account.
This proposal has a reallocation of 200,000 acre-feet of water. I
think it is very important, as Congressman Cardoza has noted and
others, that the tributaries not be impacted as it relates to their
water supply. And of course, the recirculation effort as it relates to
the Delta, the Delta which is such an important environmental
asset to California. But not only is it an important environmental
asset, it is the linchpin of our plumbing system as we try to manage our water needs in California and provide water supplies not
just for Northern California, but to Central California and to
Southern California.
So I think it is important that the discretion, as we work on this
effort, be made available to the Secretary under current law, as it
relates to physical structures, channel improvements, and water
flows. And I think that that has to be understood. And I think that
defining successful implementation of this agreement must be understood by all the stakeholders, and that I think specifically relates to the third-party impacts.
Having worked with all of the parties in the past, I can tell you
that ambiguity, ambiguity in past water negotiations oftentimes
has led to the law of unintended consequences. What do I mean by
that? I mean that those unintended consequences later on result in
disputes and reinterpretation that has unfortunately oftentimes led
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into further litigation. I dont believe that furthers anybodys interest.

We have come a long way in 18 years in this restoration agreement. But the fact of the matter is we havent finalized the effort,
and we have to finalize this effort by providing the third-party impacts. If we do that successfully, I will be happy to support this effort.
And I yield the balance of my time.
[The letter submitted for the record by Mr. Costa follows:]
13
Mr. RADANOVICH. Thank you, Mr. Costa. There being no further
opening statements, I am going to go ahead and introduce the first
panel.
We have two panels here today. Joining us on the first panel
today is Mr. Kole Upton, who is the Chairman of the Friant Water
Users Authority from Chowchilla, California; Mr. Hal Candee, Senior Attorney of the Natural Resources Defense Council in San
Francisco; Mr. Jason Peltier, Principal Deputy Assistant Secretary
for Water and Science of the Department of Interior in Washington, D.C.; the Hon. Mike Chrisman, Secretary of the Resources
Agency of the State of California in Sacramento; and the Hon. Lois
Wolk, Chair of the Committee on Water, Parks, and Wildlife, the
California State Assembly, in Sacramento as well.
Ladies and gentlemen, welcome to the Subcommittee. Many of
you were diligently working on getting us up to this point, and I
appreciate the fact that you are here to explain all the good work
that has happened, not only over the last year, but also over the
last 24 to 36 hours.
As the hearing goes, we would like to hear from each one of you
with an opening statement of about five minutes. Please feel free
to be extemporaneous in your remarks, as your full written testimony is submitted for the record. And then we will open up the
dais so Members may ask any questions they might have.
So Mr. Upton, welcome to the Subcommittee, and you may begin
your testimony.
STATEMENT OF KOLE UPTON, CHAIRMAN, FRIANT WATER
USERS AUTHORITY, CHOWCHILLA, CALIFORNIA
Mr. UPTON. Thank you, Congressman. We appreciate your leadership on this.

I will start by apologizing. You asked for the best and brightest;
Brian sent me instead.
[Laughter.]
Mr. UPTON. But they did send a keeper with me, and I would
like to introduce Dan Dooley behind me, who is one of the lead negotiators. So if the questions become too difficult, Dan can step in.
Mr. RADANOVICH. Certainly, and that is not a problem at all, Mr.
Dooley. If you would just recognize yourself before you speak, that
would be just fine.
Mr. UPTON. I am a family farmer. I actually farm and live in
Congressman Cardozas district, which means he probably has
every water issue in the State of California right within his district. It was started by my father, and then we are now farming
with my brother and two sons. And we farm almonds, pistachios,
cotton, wheat, and corn.
We are typical of the Friant-type farmer. There are 15,000
farmers in the Friant service area, from Merced County to Currant
County, about a million acres. In addition, there are about a million and a quarter people that are embedded in the Friant service
area, that depend on the Friant surface water either directly, like
Orange Cove or the City of Fresno, or they depend on the percolation into the aquifer so they can pump it out from the underground.
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This is a highly productive area; it is a very vibrant society. And
it is a conjunctive-use area, which is an important thing to remember.
Congress dried up this river in the 1930s by specific design. And
the idea, I think, was to give an opportunity to people, and also to
redress the underground overdraft of the aquifer that had occurred.
And a lot of people took this opportunity, and it is a government
program that has actually worked pretty well.
In 1988 NRDC sued the government. And it came down to basically that Congress was violating the law by drying up a river, a
California law, that there had to be a live river below every dam.
Law 5937.
Well, we have battled on this thing for 18 years. And last year
the judge basically said the jig is up, he had had enough, and he
was going to rule. And he had indicated that he had very crude
tools, like a sledgehammer, a meat cleaver; and if we were smart
as settling parties, we would get together and try to settle this
thing.
Well, it became pretty obvious to us that whatever he used, the
sledgehammer or the cleaver, it is going to be on Friants back primarily. So when Senator Feinstein and you, Congressman, requested that we try one more time to settle this thing with certain
conditions, we jumped at that chance. And the conditions that you
encouraged us were caps on the Friant water, so we could have
some certainty.
The Friant guys didnt go to San Francisco, to Mr. Candee, and
say hey, let us make a deal here, we think it is a good idea to
rewater this river. This is the result of a lawsuit where we had two
choices: we could take the judges ruling, or we could take a settlement that you and Senator Feinstein had offered us under those
conditions.
And so that is what we did. And we negotiated for about three
months with NRDC, and we were able to come up with the concept
of caps on the water and caps on the funding for the Friant folks.
And neither one of those is available in a court judgment.
At that point then we had to bring in the Federal team, because
the feds are part of this. And to their credit, they brought in their
A team. Some of them are here today: Steve MacFarlane, Barbara
Geigle, two sharp attorneys that really helped us, and Bill Luce,
the Area Manager for Fresno.
During this time we also negotiated some water management
tools for Friant that are going to help us mitigate the losses that
we are going to have when we release water out of our districts.
And these are the water management, excuse me, or the recirculation, where we are going to take the water down to the Delta, and
if we are able to, without hurting anybody else or infringing on
their rights, we want to recirculate that, which will mitigate some
of the losses.
The second thing, which will require some Congressional legislation, is a recovered water account, where water will be available
during wet conditions for the Friant farmers that have given up
water as part of this restoration, to buy it at a low price, so we can
bank it, so we can use it as inland recharge, and that kind of thing.
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The next step for the Friant folks is to get together as a group,
all the contractors, and say how are we going to take care of the
losses that our guys have. Because some of our districts are along
the mountains; they have no groundwater whatsoever. So when
they lose some surface water for this restoration, they are either
going to have to fallow their land or go out of business. That is unacceptable. So what we have to do as Friant is work with our classtwo districts and make some trades so those folks can stay in business. And we can do that. And we have started that process already.
There are basically three legs to this agreement as I look at it.
First is the restoration of the salmon. That is what Hal wants. OK,
we have agreed to that.
Second is the water management tools that are available to us,
that are not available under a judgment. And I have just explained
those.
The third leg is the third parties, which several of you Congressmen have mentioned. It is not fair to have this settlement on the
backs of some other water user. We dont want to do that. It is in
the settlement document that there will be no material adverse impact to third parties.
The question is, how do you do that? How do you set that up?
And that is what we have been working on here for the past two
days, and I think we are very close to it.
I will just conclude by saying that the farmers
Mr. RADANOVICH. Go ahead, I want you to finish your statement.
So go ahead and ignore the red light.
Mr. UPTON. OK, thank you.
[Laughter.]
Mr. RADANOVICH. I will apply the red light to Members of
Congress.
[Laughter.]
Mr. UPTON. I will conclude by saying that farmers are used to
adversity, OK. We are used to bad weather, to bad prices. We are
used to pests, and I am not talking about Hal here.
[Laughter.]
Mr. UPTON. So we have to deal with that kind of thing. And this
is where we are at on this. This is a judgment call for us that this
is a better solution that continued fighting.
And I will submit to you that it is better for us, it is better for
them, and it is even better for the third parties if we do it right.
Because if this thing goes back to court, we are all going to be in
worse shape.
So thank you very much, Congressman, for your leadership.
[The prepared statement of Mr. Upton follows:]
Statement of Kole M. Upton, Chairman, Friant Water Users Authority, and
Director, Chowchilla Water District
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
It is an honor and privilege to again appear before this Committee, and to help
bring you the best news regarding a major Western resource issue that has been
heard in a long, long time. I am Kole Upton, Chairman of the Friant Water Users
Authority, Director on the Chowchilla Water District Board, and a family farmer in
Merced County, California. My family for decades has depended upon, and beneficially used, Central Valley Project water delivered from the San Joaquin River
through facilities of the CVPs Friant Division.
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Eight days ago, 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
on September 13, documents were being electronically filed within the U.S. District
Court of Judge Lawrence K. Karlton to settle the San Joaquin River litigation
known as NRDC v. Rodgers that has been so contentious, and which has placed
such a dark cloud over Friants 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 may not be not perfect, but it is by far the most practical option
for each of the parties, and particularly for the region I represent.
Please permit me to briefly digress and commend the legislators and policymakersFederal, State, and Localwho have done so much to reach this remarkable point in time, and who continue to recognize that only through continued cooperation and consensus can we turn the Settlement that I am about to discuss into
legislation we need to quickly make restoration and Settlement implementation a
reality. In particular, Mr. Chairman, the settling parties and the people and organizations we represent are grateful for the leading roles that you and Senator Feinstein 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. Thank you, Chairman Radanovich, so very much.
As you may know, 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 Valleys East Side. The Friant Division sustains underground
water supplies relied upon by residents, businesses and industries in the embedded
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.
PERSONAL INVOLVEMENT
For the past year, I have been one of Friants two negotiators in the three-party
negotiations that produced this Settlement. I have been paired with Dan Dooley, an
attorney in Visalia, California, who represents several Friant contractors. Mr.
Dooley will be with me at todays hearing, and will be available to respond to any
questions you may have regarding Settlement details.
Mr. Dooley and I were motivated to find a way to settle the NRDCs lawsuit over
the San Joaquin River because of how deep our roots run back home in the San
Joaquin Valley and how determined we were to preserve the valleys way of life.
Friant Dam and water delivered through the Madera and Friant-Kern canals has
always provided a great deal of opportunity. In my familys case, it helped us build
and sustain our farm in Merced County, north of Chowchilla, which my Dad started.
I was born and grew up in the valley and started farming after finishing college
and serving in the Air Force. Our farming operation today includes my brother and
my two sons. We grow almonds, pistachios, wheat, cotton, and corn.
I became involved in our local water boards and, eventually, with Friant because
it is so clear that water means everything to farms and communities such as ours.
For the past 18 years, this supply of water from Friant that means so much to us
has been under a dark cloud. We have had every reason to believe that those of
us who farm and communities that truly exist because of Friant could end up losing
all or a major portion of their water through a judges decision in the NRDC case
or because of some other challenge.
Such a possibility was unacceptable. A farmer cannot farm without an adequate
and affordable water supply. Further, a farmer must have some certainty before
committing to a growing season. And so, even as this case began to head down a
fast track toward trial, we were provided with an opportunity to sit down and try
again. I can assure you that neither Mr. Dooley nor myself were overjoyed at the
prospect but we knew it had to be attempted and, if at all possible, steered toward
a resolution in a way that all of us could live with. That has now been done.
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BACKGROUND
It goes without saying that this case has been seemingly endless, frequently frustrating, incredibly challenging, eternally complicated, often controversial and always
expensive.
It began in 1988 just as the U.S. Bureau of Reclamation was beginning to renew
Friants long-term 40-year contracts. NRDC and its coalition of environmental and
fishing interests challenged the governments decision to renew Friant water service
contracts without an Environmental Impact Statement. Of course, it didnt stay that
simple. NRDCs 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 another contended that the federal governments 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 issuethe most
crucial of all to Friant userscame to be the litigations focus over the past several
years, especially during an earlier four-year settlement effort that was unfortunately not successful.
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. It assigned liability to the Bureau of Reclamation. The court did not determine how much water would be needed to satisfy the state law but set the case for
a trial that was to have started in February 2006 to determine the remediesthe
amount of the releases. In 2005, the parties began preparing for that trial and in
the process gained valuable new scientific information about possible restoration
strategies.
I believe the seed of this Settlement was planted by Judge Karlton himself one
day in January 2005 during a hearing in his court. The judge said two or three
times there needed to be a settlement. Judge Karlton said, I keep telling you folks
the law is a bludgeon, not a surgeon, and what this case needs is surgery. And it
can only be accomplished if you take the scalpel in your hand. And he looked us
all in the eye and warned about as bluntly as a judge can put it, But the result
of that is that youre going to get the kind of fairly gross application of the law that
the law willthe only thing that the law will permit me to do. There may be some
fine-tuning permitted. ... But, you know, my senseof it, but I may be wrong, is
it is not going to be a very refined solution to these problems.
That resonated with me, and with all the Friant contractors and their attorneys.
It seemed to say what many of us had long suspectedthat 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 wasnt 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. There was,
however, a strong likelihood that Friants 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 a little over a year ago when Chairman Radanovich and
Senator Feinstein began a non-partisan effort to try to get Friant, NRDC and the
government to try again to negotiate a mutually agreeable Settlement. It should be
obvious that Mr. Radanovich and Mrs. Feinstein were amazingly persuasive!
We began negotiations late in the summer of 2005. That it took us a year to finalize an agreement that resolved each and every issue should make it evident to the
greatest doubter that the process, the issues and the discussions were complex and
difficult. One of our biggest problems was that the parties had never been able to
find much in the way of common ground. It had always been an Us vs. Them mentality with positions long ago carved out in stone. So the new negotiations, although
frequent, just as often were difficult. However, progress, although slow, seemed to
be steady.
Then came the key breakthroughand, again, it came at the urging of Chairman
Radanovich and Senator Feinstein. The concept was a good old-fashioned compromise. This is essentially how it was framed:
In exchange for restoring the San Joaquin River below Friant Dam, Friants new
water dedication for the fisherys needs would be capped at certain amounts. That
instantly provided Friant water users with what had long been missinga 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. And,
yes, it represents water that our already water-short area cant afford to lose. But
Friant also recognized that this would be a way to remove what promised to stretch
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into years of continued uncertainty over the Friant water supply and economic and
social well-being of the eastern San Joaquin Valley. Of equal importance to that certainty and the rivers restoration was development of the Settlements unique means
of using good, innovative water management to also provide means to recover, reuse 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
Friants financial contribution to river restoration at present levelswhich add up
to tens of millions of dollars each year paid into the CVP Improvement Acts Restoration Fund and Friant Surcharge.
By this past April, 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, attorneys agreed to a Settlement in principle.
You know the rest. The agreement, covering 20 years, and possibly longer, is now
public as a result of filing the document with the court on September 13.
THE SETTLEMENT AGREEMENT
The Settlement Agreement itself is constructed around two important parallel and
equal goals:
The Restoration Goal is to restore and maintain a self-sustaining salmon population below Friant Dam to the confluence of the Merced River.
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:
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.
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% and can be further augmented with water purchases
from willing sellers. If construction of the river improvements is not completed,
the Settlement agreement contains default provisions designed to preserve
water for later use to achieve the Restoration Goal. Procedures are also specified for flexible management of Restoration Flows to account for temperature
and biological factors. This adaptive management is to avoid causing harm to
other downstream fishery programs. The flow schedule cant 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.
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:
Development and implementation of a plan to recirculate, recapture, reuse, exchange, or transfer water released for Restoration Flows within bounds of the
Settlements terms and all applicable laws, agreements and environmental
policies.
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 longterm contractors providing water for Restoration Flows will be able to purchase
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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 Settlements water supply impacts.
SOME OF THE SETTLEMENTS OTHER FEATURES include and address:
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.
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
Friants obligations at those amounts. The Friant Surcharge would be dedicated
to implementing the settlement, as would Friants capital repayment portion of
CVP water rate payments for nine fiscal years. 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, are
anticipated. Funding identified in the Settlement is to be available to implement the Water Management Goal as well as the Restoration Goal.
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. The exception is attorneys fees and costs.
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.
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, river channel and fish passage improvements, reintroduction of salmon, interim flows for data collection purposes, 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. 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. Terms are to be for three
years.
Long-Term Friant Water Service Contract Amendments: When the Friant Divisions 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.
Friants long-term contracts will be kept in place with no further National Environmental Policy Act or Endangered Species Act compliance actions required.
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.
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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 agreement contains legislative language proposed to implement the
Settlement. It is referred to as the San Joaquin River Settlement Act. Passage of
this legislation in substantially the same form as the exhibit is critical because any
party could void the Settlement if the necessary legislation were not enacted on a
timely basis.
CONCLUSION
Settlement of the 18-year-old litigation known as NRDC v. Rodgers has been
rightly applauded in much of the nations 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 societys 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.
To that end, there are individuals and interests who have been quick to criticize
this agreement, ostensibly for not being perfect, whatever that is. In fact, those of
us who farm are never blessed with perfection. Every growing season presents the
challenges of weather, pests, prices and thieves. You try to find the best practical
approach to handling each challenge.
The Friant Division contractors reviewing the situation and prospects posed by
the potential outcome of continuing to litigate over San Joaquin River flow issues
with the NRDC and its coalition have taken the same approach as would any farmer in evaluating what this Settlement offers. I would urge you to do the same. Let
not an unrealistic desire for perfection be the enemy of the practical.
In addition to societys 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:
The environmentalists interested in restoring flows and salmon to the San
Joaquin River.
The San Joaquin Valley folks who are dependent on San Joaquin River water
for sustaining their livelihoods and homes within the Friant Division.
The third party interests who do not want 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:
Some in the environmental community may wonder why they should settle with
caps on Friants costs and water releases when they have won so convincingly
to date in Judge Karltons 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.
San Joaquin Valley water users interests 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 an unfavorable
ruling 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 judges decisions, and
it resulted in our contracts being voided. His ruling was upheld by the Ninth
Circuit and the Supreme Court would not take the case.
As a farmer, one firm slap on the head is usually enough to get my attention.
Thats true with most farmers I know, too. All of our Friant and district lawyers
have informed us that this case, at best, would be an uphill battle with an uncertain, but possibly onerous, outcome. This Settlement is a far superior option.
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The third parties seek protection and indemnification against unfair water and
fiscal costs they assert the Settlement would be inflict upon their constituents. Some
may demand 100% protection, and if it is not forthcoming, then they will recommend rejection of the Settlement. We have tried to address their concerns, and
the Congress may need to add some legislative language to further protect them.
However, it is important to understand that rejection of the Settlement does not
mean the third parties would suddenly be 100% free of any impact upon them. Far
from it.
It would be naive to harbor a thought that Congressional rejection of the Settlement would make the prospects of flows down the San Joaquin River, and a return
of salmon, go away. If the Settlement were to ultimately fall apart, it would only
be a matter of time until the Judge rules, and the water flows. Should that occur
upon a courts order, rather than a carefully crafted and negotiated compromise Settlement, third parties would have none of the protections or opportunities for constructive comment and participation offered in this Settlement.
Society has determined that the rules under which Friant was built, and how it
has so effectively functioned in benefiting the valley community, have changed. Environmental care and concern today are the partners of valley farming and living.
Friant has embraced this notion and, in fact, has been working steadfastly for the
past several years to create the scientific basis of understanding upon which good
and effective restoration decisions can be founded. Friant wants restoration of the
San Joaquin River to work.
As I stated at the beginning of these remarks, for society as a whole and all the
parties, this is a good Settlement. It provides a process to restore a river in manner
that maintains a vibrant economy and society. It offers protection for third parties.
It offers new life to the river and its fishery habitat.
Most importantly, it provides a future course upon which all of us can use our
resources and talents in a cooperative and constructive manner rather than wasting
our energies upon continued legal and political fighting.
Friant, NRDCs coalition and the Interior Department have done what some contended was the impossible. Weve reached a practical, fair and cooperative Settlement. Weve made history. We ask those of you in Congress to join us by providing
the tools to make this Settlement work.
[The response to questions submitted for the record by Mr. Upton

follows:]
FRIANT WATER USERS ASSOCIATION
October 20, 2006
Congressman Richard Pombo, Chair
Washington, D.C. 20515
Re: Additional Questions for Witnesses, Hearing on the San Joaquin River
Settlement Before the Subcommittee on Water and Power, Thursday,
September 21, 2006
Dear Congressman Pombo:
Thank you for the opportunity to appear at the Subcommittee Hearing on the San
Joaquin River Settlement.
I am pleased to provide you a copy of my direct response to Congressman Nunes
questions stemming from the Subcommittee on Water and Power Hearing on the
San Joaquin River Settlement on September 21, 2006. As you are aware, a large
part of the Friant Service Area is in Congressman Nunes District and thus a direct
response to Congressman Nunes seemed appropriate. He continues to be a leader
in promoting good public policy to ensure adequate and affordable water is available
to our area for the future. Maintaining an adequate and affordable water supply
was at the core of the decision of the Authority and all of its member irrigation and
water districts to settle the long-standing litigation.
Please note that separate responses from the Natural Resources Defense Council
and the U.S. Department of the Interior will be provided which, in certain instances,
cite additional information to the questions asked as referenced in my responses.
Sincerely,
Kole M. Upton
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Enclosure
Main Office
854 N. Harvard Avenue
Lindsay, CA 93247
Phone: 559-562-6305
Fax: 559-562-3496
Sacramento Office
1521 I Street
Sacramento, CA 95814
Phone: 916-441-1931
Fax: 916-441-1581
Website: www.fwua.org
Response to questions submitted for the record by Kole

Upton, Chairman, Friant Water Users Authority
October 20, 2006
The Honorable Devin Nunes
Re: Additional Questions for Witnesses, Hearing on the San Joaquin River Settlement Before the Subcommittee on Water and Power, Thursday, September 21,
2006
Dear Congressman Nunes:
Thank you for participating in the Subcommittee Hearing on the San Joaquin
River Settlement. This response to your questions was generated in conjunction
with my position as Chairman of the Friant Water Users Authority (Friant) and
that organizations role in the Settlement process. I want to directly respond to you
from the perspective of Friant in deference to your essential position and role in our
areas future and your representation of a significant portion of the Friant Service
area.
Your leadership in promoting good public policy to ensure adequate and affordable
water is available to our area for our future is greatly appreciated. Maintaining an
adequate, affordable and reliable water supply was at the core of the decision of the
Authority and all of its member irrigation and water districts to settle the longstanding litigation.
QUESTION - 1. Based on the terms of the Settlement, has an analysis been completed on the potential water losses on a district-by-district level and wateruser-bywateruser level? If so, can you provide a copy of that analysis to the Committee?
Answer: Friant expects that its member districts operations will be significantly
altered after the Settlement is implemented, and it is hoped that, through operational changes, increased conjunctive use and groundwater banking programs, and
the like, the Friant water users will be able to minimize the impacts of the Settlement. While an analysis of the Friant Division impacts (referred to in the Federal
and NRDC responses) on water deliveries was prepared to give the Friant member
districts a basis to determine the potential district level impacts of the Settlement
on their individual operations, that analysis assumes historic operations of Friant
Dam and does not consider any future modifications of project operations. Consequently, the Friant member districts do not believe this Friant Division analysis
would further the Committees understanding of the potential future impacts of the
Settlement on the individual districts. However, the Friant districts recognize that
you and the Committee have an interest in understanding the likely water supply
impacts of the Settlement on the Friant districts, and, to reiterate our earlier offer
to you, the Friant districts are willing to make their general managers available to
brief you and other interested Members on the individual districts likely reactions
to the Settlement, the programs the districts contemplate implementing, and the anticipated water supply impacts. To the best of my knowledge there has been no
wateruser-by-wateruser analysis prepared.
The essential next step for the Friant contractors is to develop a cooperative
agreement using the mitigation measures in the Water Management Goal of the
Settlement to offset losses incurred by water users as a result of the restoration releases. Some districts cannot afford to lose any surface water in that they have no
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ground water. Therefore, it is imperative that the districts with banking facilities
and Class II contracts make arrangements with those districts to ensure all growers
and communities have access to affordable and adequate water.
QUESTION - 2. According to the California Department of Fish and Game, Fish
Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of California
(page 31), by 1928 there were very few salmon remaining in the San Joaquin
River above the Merced River and that the historical salmon fishery that once existed had been severely depleted. Considering this is 15 years before the construction of Friant Dam, how would the Settlement change historical facts?
Answer: The Settlement will not change historical facts. Friant is aware of the
information contained in Bulletin Number 17 and generally understands that fishery numbers fluctuate according to hydrology. In this case the information is somewhat irrelevant because, notwithstanding arguments to the contrary, the Judge
ruled that the Bureau of Reclamation had violated California Fish and Game Code
section 5937 by not releasing water to maintain an historic salmon fishery. He
scheduled a trial to determine the appropriate remedy (i.e. how much water would
be required to restore an historic salmon fishery).
In light of these rulings, Friant expected the Judge to require substantial releases
for a salmon fishery and to retain jurisdiction to adaptively manage such releases
to meet the requirements of the law as he had determined it to be. The immediate
loss of water would have resulted in severe adverse impacts to Friants water supply, and those impacts would have been compounded by uncertainty about the adequacy of future supplies because they would been under the direct management of
the court. The Settlement avoids such uncertainty and removes ongoing management from the jurisdiction of the Court.
QUESTION - 3. What is a reasonable expectation of success relating to reintroduction of spring-run Chinook salmon into the San Joaquin River? How many naturally reproducing spring run Chinook salmon can we expect to inhabit the San
Joaquin River as a result of the proposed restoration program?
Answer: I cannot answer the question because I do not know. Having said that,
I do understand that historically the spring run was the most viable salmon run
on the upper San Joaquin River. The Federal and NRDC responses to the Committee contain more detailed information regarding the expected number of salmon
that the restoration effort will generate.
From a Friant perspective, it is important to recognize one clause in the Settlement (Paragraph 3) wherein the Parties acknowledge that the restoration program
may not be completely successful. Nevertheless, the lawsuit is settled and the Friant
Service Area can move on with our lives with reasonable certainty as to the quantity and cost of our water and with a new menu of programs to more effectively
manage our water supplies. The certainty provided by the Settlement is why the
Settlement is so important to Friant. A Court judgment would have exposed Friant
to more Court intervention, no caps on our water releases, and no means to mitigate
the losses.
QUESTION - 4. Considering that restoration of a salmon run will require consistent cold water flows, is there a plan to develop temperature controls to eliminate
impacts on downstream tributary salmon runs? If so, what are the details of the
plan?
Answer: Yes, the Settlement includes a number of provisions that provide flexibility for management of the spring pulse flows. Additionally, the experiments to be
conducted with the Interim Flows provided for in the Settlement will develop needed information to better manage the flows to provide necessary temperature levels.
QUESTION - 5. Would the funds authorized by the proposed settlement legislation produce better results on streams other than the San Joaquin Riverin terms
of increasing the population of the spring-run Chinook salmon?
Answer: To my knowledge, no analysis was conducted relative to funding improvements on other streams for the benefit of spring-run Chinook salmon. The principal
reason that such analysis has not been done is because the litigation relates solely
to how the State Law (Section 5937) applies to Friant Dam. Throughout the current
and past settlement discussions, a number of restoration options were explored. The
Parties could not come to agreement on a restoration plan before the Court ruled
that Section 5937 required a salmon fishery.
QUESTION - 6. Please identify how the terms of the Settlement will provide
water quality improvements in the Delta?
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Answer: Please refer to the Federal and NRDC responses to the Committee. In
addition, I would add that this Settlement is not a water quality program, but a
restoration program. There may be some incidental benefits to water quality in
some areas. It is not known whether Delta water quality will benefit from the Settlement. From an intuitive perspective, it seems that if the Settlement results in
more fresh water flowing into the Delta, some beneficial effect on water quality
would result.
QUESTION - 7. Is there a plan to address the groundwater overdraft that will
occur as a result of reduced water deliveries to the Friant Division? If so, what are
the details of the plan?
Answer: The Recovered Water Account (RWA) part of the Water Management
Goal called for in the Settlement is the vehicle to be used for groundwater banking
and in lieu deliveries to mitigate for the groundwater overdraft. Those districts having the ability to recharge have their own plans. This will be an essential part of
the program to mitigate other losses for all in the Friant Division. Districts not having recharge capability can make arrangements for their RWA entitlements to be
traded with those districts with recharge capabilities to ensure constituents of both
districts receive adequate and affordable water. I have great faith in the creativity
of the water management professionals within the Friant Division to take advantage of these new tools to mitigate the impacts. Additionally, Friant will continue
to pursue development of programs and infrastructure beyond those specified in the
Settlement to augment our water supplies and water management capability.
QUESTION - 8. What are the estimated costs to implement the restoration plan
proposed in the Settlement? Please provide details on how you developed the estimate?
Answer: There is a wide range (approximately $250 million to $800 million) of
cost preliminary estimates for implementation of the restoration goal of the Settlement. We will provide you further information about how the preliminary estimates
and the assumptions were developed.
QUESTION - 9. The proposed legislation submitted to Congress has a provision
of no private right of action. What prevents parties from filing suit for more water
after 2026? What prevents a third party from filing suit in reference to NEPA compliance, or other applicable laws, as feasibility studies are conducted on various aspects of the Settlement?
Answer: I understand that this provision does not undermine any existing private
right of action. I defer to the technical response to the Committee from the Federal
parties.
Thank you for the opportunity to participate in this important process. I would
be happy to answer any additional questions.
Sincerely
Kole Upton, Chairman,
Friant Water Users Authority
P.O. Box 575
Chowchilla, California 93610
cc: Lane Dickson, for Congressman Pombo,
Committee on Resources,
Mr. RADANOVICH. Thank you, Mr. Upton. Mr. Hal Candee,

welcome to the Subcommittee. You may begin.
STATEMENT OF HAL CANDEE, SENIOR ATTORNEY, NATURAL
RESOURCES
DEFENSE
COUNCIL,
SAN
FRANCISCO,
CALIFORNIA
Mr. CANDEE. Thank you very much. And I very much

appreciated the opening statements of each of the Members of the
Committee and Subcommittee. It was very encouraging, and I
appreciated hearing that.
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Mr. Chairman and Members of the Subcommittee, my name is
Hamilton Candee, and I am a senior attorney with the National
Resources Defense Council, and co-director of NRDCs Western
Water Project.
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 two million people nationwide, and
more than 250,000 Californians. Like Kole, I have brought some
helpers with me, and I want to introduce the NRDC Senior Attorney, Kate Poole, NRDC Restoration Scientist, Monty Schmitt, as
well as Philip Atkins-Pattenson of the firm Sheppard Mullin Richter & Hampton, who also represents the coalition. All four of us
have been involved in the settlement negotiations that produced
the agreement that is the subject of todays hearing, and we are all
available to help answer questions today from the panel.
Over the past years some Members of this Subcommittee have
closely followed the progress of these settlement talks. And to all
of you and all of the Members of the Committee and the public-atlarge I want to say thank you for your patience. We know you
wanted to hear details earlier than we were able to give them to
you. We know you wanted to see a final agreement, and we wanted
to see one sooner. And we worked as diligently as we could. As
Kole mentioned, it has been 12 or 13 months.
But despite the fact that Friant and NRDC between us reached
agreement on a tentative settlement almost 10 months ago, it has
taken many more months of good-faith efforts, not only with the
Federal government, but also with the state government, to develop
a final consensus on all the key points.
And we believe that, although that process has been difficult and
exhausting, it is fair to say that all of the settling parties believe
we now have an improved and very historic comprehensive agreement, one which will bestow benefits on millions of Californians,
while ending one of the states longest-running water disputes and
preserving a vibrant agricultural economy on the east side of the
San Joaquin Valley.
Kole has already described to you some of the details of the settlement. And in the materials that we have submitted there is a
summary of the settlement, and I know that others will get into
that.
But first I wanted to talk briefly about the San Joaquin River
itself, and how it has been managed over the past 60 years, and
why its restoration is so important not only to the environmental
groups and fishing organizations I represent, but also to the State
of California at large.
The San Joaquin is one of Californias largest rivers, and significantly is one of the two major tributaries to the San Francisco Bay
Delta Estuary, an estuary of international ecological importance,
and the source of drinking water for 23 million people.
The river originates in the High Sierra and flows east past
Fresno, 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
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Fresno. And it teamed with wildlife, including one of the largest
Chinook salmon populations on the entire Pacific Coast.
By the early 1940s, when Friant Dam was built, the steamboats
were gone, the wildlife had diminished. But tens of thousands of
Spring Run Chinook salmon, as well as a smaller fall run, still survived on the river. And in fact, they continued to survive after the
completion of Friant Dam. It wasnt until the Bureau 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 percent of the rivers flow in
most years has been diverted at or immediately below Friant Dam.
But just as the operation of Friant Dam has contributed to numerous problems downstream, and those are referenced in more detail
in my testimony, the operation of Friant Dam under this settlement will be part of the solution to these problems.
To illustrate some of the broad benefits of restoration and to
show how broad the support for settlement is, I have attached to
my testimony some materials that include a summary of some of
the many benefits from the settlement, recent news clippings and
editorials supporting the settlement, and also statements of support from interested officials and organizations throughout California. I would ask the Chairs permission to have all of those attachments included within the record.
Mr. RADANOVICH. Without objection, so ordered.
Mr. CANDEE. Thank you. One of the clippings I have attached to
this testimony is a very recent editorial from Stockton, California,
that discusses the vital importance of the settlement to that city.
Communities and farmers in the Stockton area will see water quality and water supply benefits from the settlement, particularly in
the critical late-winter, spring, and fall months, when elevated restoration flows will significantly reduce salinity and provide much
needed assimilative capacity for long stretches of the river, which
are currently impaired.
Moreover, because restoration flows will help meet regulatory requirements in the Delta, a corresponding water supply benefit is
expected for communities and farmers who depend on New
Melones Reservoir. This is just an example of some of the benefits
that are laid out in the materials I have submitted.
On behalf of the Plaintiff Coalition, I would like to thank you,
Mr. Chairman, and Senator Feinstein for your leadership in producing the settlement, and your support over the past year, and
your patience, as I mentioned before. And finally, I would like to
indicate that we at NRDC are extremely proud and grateful to
have been a part of bringing this settlement together, and look forward to working with the Members of the Committee to, as you
say, get the final issues resolved and take it to the last stretch.
Again, I have a longer statement submitted for the record. But
in conclusion, let me just say with your help and support, the environmental and fishing community, the Friant water users, the Federal government, and the State of California are ready to begin the
historic task of restoring the San Joaquin. The parties intend that
the settlement will be implemented carefully to ensure that the
broad benefits of river restoration are realized for all Californians.
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All of us at NRDC are grateful to have had the opportunity to
help make this day happen. Thank you for inviting us here to testify. Thank you.
[The prepared statement of Mr. Candee follows:]
Statement of Hamilton Candee, Senior Attorney; Co-Director,
Western Water Project, Natural Resources Defense Council
Good morning, Mr. Chairman and Members of the Subcommittee. My name is
Hamilton Candee and I am a senior attorney with the Natural Resources Defense
Council (NRDC) and the Co-Director of NRDCs Western Water Project in San Francisco. Thank you for the opportunity to testify today in support of the historic settlement in NRDC v. Rodgers. 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 are NRDC senior attorney Kate Poole and NRDC restoration
scientist Monty Schmitt, as well as Philip Atkins-Pattenson of the firm Sheppard
Mullin Richter & Hampton, who also represents the NRDC Coalition. All of us have
been directly involved in the extensive multi-party negotiation that produced the
landmark settlement that is the subject of todays hearing.
Over the past year, some members of this Subcommittee have closely followed the
progress of the settlement talks between the NRDC Coalition, Friant Water Users,
and federal government. To those members, and to all of you here today, I want to
thank you for your patience. Despite the fact that NRDC and the Friant Water
Users Authority reached agreement on a tentative settlement almost 10 months ago,
it has taken months of good faith efforts by all sides, and ultimately several State
agencies, to develop consensus on all the key points, including the authorizing legislation we are asking you to approve.
While the process of achieving this remarkable consensus has been difficult and
exhaustive, I think it is fair to say that all of the Settling Parties believe we now
have an improved and very historic comprehensive agreement, one which will bestow benefits on millions of Californians while ending one of the states longest running water disputes and preserving a vibrant agricultural economy on the East Side
of the San Joaquin Valley.
We and others are submitting materials for the Record that will address the
framework and the details of settlement in greater detail. However, I want to first
briefly describe the San Joaquin Riverhow it has been managed for the past 60
years; and why its restoration is so important.
The San Joaquin is one of Californias largest rivers, and significantly, is one of
two major tributaries to the Bay-Deltaan estuary of international ecological importance, and the source of drinking water for 23 million people. The river originates in the high Sierra, and flows east 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; and 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 1940s 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
riverand in fact, continued to survive after completion of Friant Dam. It wasnt
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 rivers 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
costto 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
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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 Effort it provides for, I have attached to my testimony some materials that include a summary of the broad benefits of this settlement, recent news clippings and editorials, and statements of support from interested officials and organizations from throughout California. I would
ask the Chairs permission to have all of the attachments to my written Statement
included in the final record of this Hearing.
One of the clippings I have attached to this testimony is a very recent editorial
from Stockton, California that discusses the vital importance of the settlement to
that city. Communities and farmers in the Stockton area will see water quality and
water supply benefits from the settlement, particularly in the critical late winter,
spring and fall months, when elevated restoration flows will significantly reduce salinity and provide much-needed assimilative capacity for long stretches of the
riverfrom Mendota Pool all the way to Vernaliswhich are currently impaired for
several pollutants. Moreover, because restoration flows will help meet regulatory requirements in the Delta, a corresponding water supply benefit is expected for the
communities and farmers who depend on New Melones Reservoir for their water.
These water quality and water supply benefits will extend to the many state and
federal water contractors who rely on the Delta pumps.
Communities and farmers downstream of Friant Dam will be strengthened by a
living river, instead of a polluted drain, 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 desperately needs
it. And for salmon fishermen and North Coast fishing communities whose livelihoods once depended on the San Joaquin Rivers 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. 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. A list of those supporters is included in the attachments we have provided to the subcommittee.
On behalf of the plaintiff coalition, I would like to thank two of key players in
producing this settlement whose support has been especially important, Chairman
Radanovich and Senator Feinstein who not only sponsored the talks that led to the
settlement, but have consistently supported the fragile consensus that began to
emerge from these talks. With this remarkably broad support, we can now move
ahead to tackle the next important steps in this cooperative restoration effort. Restoring the San Joaquin will be one of the largest and most important salmon restoration efforts ever undertaken. 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.
Nevertheless, we understand that this dramatic change, while supported by the
overwhelming majority of stakeholders and beneficial to millions of Californians,
must be carefully implemented in light of its potential to impact some third parties.
Mindful of that potential, the Settling Parties have spent much of the past several
months reaching out to third-party stakeholders, briefing them on the settlement,
discussing their concerns, and where appropriate, modifying the settlement to incorporate their perspectives and interests. Here are some specific examples:
1. To address concerns by downstream landowners and the local levee district
that restoration not cause flows to exceed the rivers flood carrying capacity,
the settlement expressly requires increased channel capacity and levee work
that will not only ensure safe conveyance of restoration flows, but will also improve flood protection for these downstream areas. This settlement will help
fund those flood improvements for downstream landowners.
2. Landowners who farm in the area known as Reach 4B have expressed opposition to restoring flows to this reach of the river, and have urged the settling
parties to consider routing flows and fish around the area by using the flood
bypass system. Among the reasons they have offered is their belief that restored flows could result in crop damage to adjacent lands, and their contention
that channel capacity is so degraded in this reach that massive and costly reconstruction work would be required. Although we believe the natural river
channel is preferable to using a flood control bypass and will not be nearly as
problematic as these parties contend, NRDC has nonetheless agreed that the
Secretary of Interior has discretion to choose an alternate course if it proves
to be a more viable and effective way of meeting the restoration objective. To
address the concern by some stakeholders about ensuring an effective voice in
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the implementation process, several provisions were included. First, the settlement was clarified to ensure full environmental compliance, including full
NEPA compliance, ensuring that as projects move forward the impacts will be
publicly assessed and interested parties will have a meaningful public forum
in which to engage. Further, the Settling Parties have entered an MOU with
state agencies which requires the engagement of stakeholders regarding the
implementation activities of the state and federal agencies. The Settling Parties do not believe, nor intend, that the settlement will have any material negative impacts on third parties. We are committed to ongoing outreach and engagement with all San Joaquin River stakeholders in implementing the settlement, and continue to believe that this settlement will significantly benefit
even the few third-party stakeholders who are raising concerns about it. These
benefits are summarized in one of our attachments. The vast majority of third
party stakeholders recognize these benefits and support this settlement. It is
important to keep in mind, as many third parties have already acknowledged,
that the status quo of the past 50 years is going to change regardless of this
settlement, and in many ways this settlement will help third parties in managing those future changes. For example, the Central Valley Regional Water
Quality Control Board is in the process of setting legally-mandated water quality objectives for salt and boron upstream of Vernalis and into the reaches of
the San Joaquin River where the some west side districts farm and discharge
very salty agricultural runoff. When these objectives are set, it may be challenging for some west side districts who rely on Delta water to achieve water
quality compliance in these areas without spending increased amounts on
elaborate treatment and disposal programs. With the settlement, these same
districts could receive tens of millions of dollars in benefits from the release
of clean water from the upper San Joaquin and in some cases having their facilities brought into compliance with our states water quality laws. This is one
reason many downstream interests have welcomed the possibility of an infusion of clean Sierra snowmelt to increase the assimilative capacity of the river
and better enable the attainment of water quality standards.
In conclusion, with your help and support, the environmental and fishing community, the Friant Water Users, the federal government and the State of California
are ready to begin this historic task of restoring the San Joaquin. The parties intend
that the Settlement will be implemented carefully to ensure that the broad benefits
of San Joaquin River restoration are realized for all Californians. All of us at NRDC
are grateful to have had the opportunity to help make this day happen. Thank you
for inviting us here to testify. As I indicated, we would be happy to answer any
questions.
[NOTE: Attachments to Mr. Candees statement have been retained in the
Committees official files.]
[The response to questions submitted for the record by Mr.

Candee follows:]
Additional Questions for Witnesses
Hearing on the San Joaquin River Settlement
Before the Subcommittee on Water and Power
Answers by Natural Resources Defense CouncilOctober 20, 2006
1. Based on the terms of the Settlement, has an analysis been completed
on the potential water losses on a district-by-district level and water
user-by-water user level? If so, can you provide a copy of that analysis
to the Committee?
The Friant Water Users recently modeled the division-wide water delivery impacts that would come from the Restoration Flows called for under the Settlement
and concluded that, in the absence of mitigation measures, implementation of the
Settlement would be expected to reduce Friant Division long-term water contractor
deliveries, on average, by about 170,000 acre feet each year (15 % of the 1,150,000
acre feet of average deliveries to Friant Division long-term contractors). Through
creative water management strategies, Friant will work to minimize the impact of
these delivery reductions.
2. According to the California Department of Fish and Game, Fish
Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of
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California (page 31), by 1928 there were very few salmon remaining
in the San Joaquin River above the Merced River and that the historical salmon fishery that once existed had been severely depleted. Considering this is 15 years before the construction of Friant Dam, how
would the Settlement change historical facts?
The Settlement would not change historical facts. While G.H. Clarks description
in Fish Bulletin Number 17 indicates a very small salmon run in a single year following several consecutive dry years, it is not surprising that salmon runs were depleted during this historic drought period. Salmon populations can vary significantly
from year to year based on several factors, including droughts. Within a few years
after the drought ended, however, the San Joaquin Rivers salmon runs rebounded
and by the 1940s thousands of Chinook salmon were once again migrating up the
San Joaquin River, including 35,000 in 1943 and 56,000 in 1945.
3. What is a reasonable expectation of success relating to reintroduction
of spring-run Chinook salmon into the San Joaquin River? How many
naturally reproducing spring-run Chinook salmon can we expect to inhabit the San Joaquin River as a result of the proposed restoration
program?
We expect that the precise number of adult Chinook salmon that will migrate up
the San Joaquin River under the Restoration Program will vary significantly from
year to year, as the salmon populations did historically, and as other salmon populations do today. The Settling Parties agree that a minimum number of spawning
fish will be needed to maintain the genetic integrity of the population, and the Settlement reflects the Settling Parties goal of not allowing the restored salmon populations to fall below such a minimum number. The Settlement also calls for a future
process to set more specific targets and goals for the Restoration Program. The fact
that Chinook salmon existed in the river for several years after the completion of
Friant Dam with population numbers ranging from 5,000 to 56,000 suggests the potential for actual population numbers that will be significantly higher than any minimum population level that is used.
4. Considering that restoration of a salmon run will require consistent
cold water flows, is there a plan to develop temperature controls to
eliminate impacts on downstream tributary salmon runs? If so, what
are the details of the plan?
We believe that the Settlement will complement, not adversely impact, downstream salmon restoration efforts. Toward that end, it is important to note that
consistent cold water flows are not required at all times throughout the San
Joaquin River system. When and where cold water is required depends on specific
salmon life stage needs and salmon migration patterns. The Settling Parties have
structured the Settlement to address these water temperature needs and migration
patterns. For example, the hydrographs and restoration actions under the Settlement are designed to ensure out-migration of juvenile salmon during the period
from approximately February through mid-April in most years, when ambient air
temperatures are generally cool enough to preclude water temperature problems for
salmon. Higher restoration flows are concentrated in this cooler out-migration period, and then quickly ramped down in most years. This strategy not only helps ensure success of reintroduced salmon on the upper San Joaquin River; it also avoids
potential temperature impacts for downstream tributary salmon. The Settlement
also provides for buffer flows and flexibility measures to ensure that temperature
objectives are met in key fall and late spring periods. Further, the Settlement calls
for coordination of restoration efforts on the San Joaquin with fishery restoration
actions on the downstream tributaries.
5. Would the funds authorized by the proposed settlement legislation
produce better results on streams other than the San Joaquin River
in terms of increasing the population of spring-run Chinook salmon?
Restoring the San Joaquin River will open up over 200 miles of river for threatened spring-run Chinook salmon, as well as other listed and non-listed fish species,
to re-occupy. The Settling Parties are unaware of any other spring-run Chinook
salmon restoration opportunity of this magnitude. Further, the San Joaquin River
is uniquely important to the recovery of spring-run Chinook salmon because it once
sustained the majority of the Central Valleys spring-run population. By re-opening
this historically dominant portion of the fishs range, the Settlement represents an
important step toward the eventual recovery and delisting of spring-run Chinook
salmon.
6. Please identify how the terms of the Settlement will provide water
quality improvements in the Delta?
The San Joaquin River is one of two main arteries to the Sacramento-San Joaquin
Delta. The increased volume of clean water in the San Joaquin River from
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Restoration Flows will provide a much needed boost in the Rivers assimilative capacity, especially in the late winter, spring, and fall months when Restoration Flows
are highest. This has the potential to help address, among other things, the serious
salt and boron impairment that exists from Mendota Dam to Vernalis in the south
Delta. In some of these areas, the improvements could be dramatic because Friant
water is extremely low in salt (about 50 mhos/cm). It is anticipated that the Interim Flows called for by the Settlement will be used, in addition to other purposes,
to determine water quality impacts more precisely.
7. Is there a plan to address the groundwater overdraft that will occur
as a result of reduced water deliveries to the Friant Division? If so,
what are the details of the plan?
Through careful and creative water management, and through the water management programs provided under the Settlement, the Settling Parties believe that additional groundwater overdraft can be mitigated or avoided. The Recovered Water
Account created under the Settlement will provide access to low-cost water supplies
that will enable expansion of the existing groundwater recharge efforts with the
Friant service area. Moreover, the passive groundwater recharge provided by Restoration Flows will increase groundwater storage in some areas currently suffering
from groundwater overdraft.
8. What are the estimated costs to implement the restoration plan proposed in the Settlement? Please provide details on how you developed
the estimate?
The Settling Parties have carefully studied San Joaquin River restoration for
many years and, as part of this Settlement, have identified the actions and highest
priority projects necessary to achieve restoration as provided in the Settlement. Preliminary cost estimates to complete these actions and projects were developed ranging from $250 million to $800 million. The largest variables in this range are the
assumptions as to the specific type and extent of levee work that may be required
in connection with some of the projects. The California Department of Water Resources, which has responsibilities related to levees and flood protection, has reviewed the Settlement and provided its own preliminary cost estimate in the range
of approximately $350 million to $570 million. More precise cost estimates will be
completed in the course of project-specific planning activities, which will occur as
part of Settlement implementation.
9. The proposed legislation submitted to Congress has a provision of no
private right of action. What prevents parties from filing suit for
more water after 2026? What prevents a third party from filing suit in
reference to NEPA compliance, or other applicable laws, as feasibility
studies are conducted on various aspects of the Settlement?
The Settlement specifies a procedure by which the Settling Parties may move the
court or bring a new action after December 31, 2025 to change the Restoration
Flows established by the Settlement. Neither the Settlement nor the proposed legislation limit or preclude any rights or causes of action that a third party might have
under existing law. Moreover, nothing in the Settlement or proposed legislation prevents affected third parties from exercising their legal rights under other applicable
laws, such as NEPA. The referenced provision in the proposed legislation only specifies that the legislation does not create a new right of action.
Mr. RADANOVICH. Thank you, Mr. Candee, for your testimony.

Next is Mr. Jason Peltier.
Mr. Peltier, welcome to the Committee.
STATEMENT OF JASON PELTIER, PRINCIPAL DEPUTY
ASSISTANT SECRETARY FOR WATER AND SCIENCE, DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
Mr. PELTIER. Thank you, Mr. Chairman, for the opportunity to

represent the Department here today in support of the settlement
agreement.
I would like to start by recognizing that along with me are Kirk
Rodgers, the Regional Director of the Bureau of Reclamation in
Sacramento; Barbara Geigle from the Solicitors Office; and Steve
MacFarlane from the Department of Justice. Those three played
essential on-the-ground roles in getting this settlement achieved.
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I think it is important to look at the broader conflict that is being
settled here. In fact, in many ways it is a post-child kind of a conflict over a water resource and the environment. And that is why,
poster child and very complex and very big, that is why it has
taken us so long to find our way out of the forest into the world
of settlement.
Hopefully, the settlement can also be looked at as a poster child:
a poster child of collaboration among the parties, a poster child of
recognizing the common interests, common needs, interests, and
desires of the settling parties and the broader public.
I should make clear that this is a settlement of litigation. As we
move forward and have discussions about specific legislation to implement that settlement, the legislation will be about settling the
litigation. It will not be a, it will set a foundation for a restoration
program.
As we go forward, there are a lot of decisions to be made. There
is a lot of work to be done, years of work to be done, to sort out
exactly how it will affect this restoration program. In that work I
think it is essential, I know the agencies are committed and the
settling parties are committed to have a broad, open, public process
where the interests and concerns of all are at the table, the expertise of all is at the table, and the decisions are made in an open
fashion with regard for the interests of all.
It is only through, I think, that kind of open process, where there
is broad ownership of the settlement, of the restoration program,
of the water management efforts, that we will go forward successfully. If we are unsuccessful in addressing the concerns of the third
parties, there is some, I suppose, chance that legislation could get
through Congress at some point in the future implementing the
settlement. But that would be setting, we would then have set the
stage for a very complex and difficult implementation process.
I think we need to look forward to implementation. Central to
implementation is the successful resolution of third-party interests
and concerns, and their successful engagement in the process moving forward. That broad ownership will assure that not just today,
tomorrow, next Congress, but 20 years from now, all folks are still
working together.
I would like to thank, in addition to the folks I have already
mentioned, there are a lot of people within the Reclamation and
Fish and Wildlife Service, NOAA Fisheries, OMB, Justice, CEQ,
that have been focused on this effort, and have been asking tough
questions, tough questions about uncertainty, tough questions
about risk, the risk of what happens if we dont go forward with
the settlement. That testing that we have gone through in the Administration in getting approval and support within the Administration I think has been very valuable as a demonstration of the
strength of the settlement agreement.
I would like to close by saying that the Friant Division of the
Central Valley Project has been a fabulously successful public
work. It has brought irrigation water into the post-war era, and
that area from Chowchilla south to Bakersfield saw a boom of agricultural development of small farms, community growth, and economic growth that is a fabulous picture of what the reclamation
program is all about.
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Today our challenge is to make sure that we maintain those benefits, maintain that vibrant economy, while achieving some broader
public goals, goals about a river flowing, about a salmon fishery returning, that reflect changing public values.
Thank you very much.
[The prepared statement of Mr. Peltier follows:]
Statement of Jason Peltier, Principal Deputy Assistant Secretary for Water
and Science, U.S. Department of the Interior
Mr. Chairman and members of the Subcommittee, I appreciate the opportunity to
appear before you today to discuss the proposed settlement of Natural Resources
Defense Council (NRDC), et al. v. Kirk Rodgers, et al.,. 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 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 seized to resolve this litigation in a way that
will both restore the San Joaquin River and increase certainty to farmers that they
will continue to be able to access the water supplies upon which they rely. A Stipulation of Settlement (Settlement) and draft Federal implementing legislation have
been filed with U.S. District Court. My testimony today will provide an overview
of this proposed settlement.
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
maximize water deliveries which result in approximately 60 miles of the river being
dried up in most years, except during seasonal flood control releases.
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 their 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 the federal defendants must operate Friant Dam in accordance with California Fish and Game Code 5937, which 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. On June 24, 1998, the Ninth Circuit Court of
Appeals affirmed most of the District Courts rulings but remanded to the District
Court the issue of the applicability of 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 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 Diane 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
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Parties filed the Settlement, including proposed Federal implementing legislation,
with the Court. The Settlement Agreement is based on two goals and objectives:
1. A restored river with continuous flows to the confluence of the Merced River
and naturally reproducing and self-sustaining populations of Chinook salmon.
2. A water management program to minimize water supply impacts to Friant Division long-term contractors.
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, to sustain naturally reproducing Chinook salmon and other fish populations in the 153-mile stretch
of the river between Friant Dam and the confluence of the Merced River.
Water Management Goal
Recognizing that the Settlements 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 small farms that currently rely on these
supplies. One million acres of the most productive farmland in the country as well
as many towns and cities along the southern San Joaquin Valleys 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 storage such as 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 2026, 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.
Restoration Funding
The Settlement identifies a number of funding sources to support implementation
of these projects, including current payments from farmers and cities served by
Friant Dam, state bond initiatives, and authorization for federal appropriations
although without a commitment to appropriate federal funds. These funds are to be
used to meet both the Water Management and Restoration goals.
More specifically, the Settlement envisions the continuation of and the dedication
of the Friant Surcharge, a CVPIA environmental fee of $7 per acre foot of water
delivered to Friant Contractors that is expected to average about $8 million per year
($160 million over the 20-year period), and up to $2 million annually of other CVPIA
Restoration Fund payments made by Friant water users under the CVPIA for use
by the program ($40 million over the 20-year period).
It also calls for the dedication of the capital component of water rates paid by
Friant Division water users to the program for 9 years ($90 million over the 10-year
period). These are funds that at present go to the U.S. Treasury to repay the capital
costs of construction in the Friant Division; these funds, instead of going to the
Treasury, would directly pay for implementing the Settlement. The Settlement provides that the monies contributed to the Settlement from the Friant Surcharge, Restoration Fund payments, 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. The Settlement anticipates fiscal participation by
the State of California as well.
The Settling Parties have agreed on a suite of actions to be taken to restore flows
and salmon runs, but those actions still contain significant uncertainty. The
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proposed actions are nowhere near as detailed, for instance, as would be found in
a Feasibility-level study for a Reclamation project. However, some parties have provided an extremely rough estimate for total costs of $600 million. It is possible or
even likely that these costs will go up as the project details become firm.
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 federal appropriations may be integral to implementing the settlement. However, the Administration is not willing to commit to seeking any particular level of funding. All the
parties to the settlement must realize that implementation of this settlement, including any authorizing legislation, does not imply a limitless federal commitment
to fund whatever it costs.
Third Parties
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) have taken the opportunity to review
the Settlement documents. In addition, the Settling Parties have conducted numerous briefings throughout the Central Valley, which have been attended by approximately 70 Third Party representatives. At those briefings, the Settling Parties
walked through the proposed Settlement in detail, responded to questions, and listened to comments. Following those briefings, a number of the Third Parties 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.
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. We look forward to working with the Committee on implementing
legislation that reflects the settlement, protects taxpayer interests, and effectively
achieves the settlements goals. We believe that this historic agreement is the start
of a truly collaborative process that will result in a restored river for all.
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.
[The response to questions submitted for the record by

Mr. Peltier follows:]
Additional Questions for Witnesses
Hearing on the San Joaquin River Settlement
Before the Subcommittee on Water and Power
These follow-up questions were submitted by Rep. Devin Nunes on October 5,
2006, to all witnesses who testified before the Subcommittee on Water and Power:
on the potential water losses on a district-by-district level and
wateruser-by-wateruser level? If so, can you provide a copy of that
analysis to the Committee.
Reclamation has not performed a district-by-district level or wateruser-bywateruser level analysis on the potential water losses. The Friant Parties completed
modeling of the water delivery impacts that would result from the Settlement to the
Friant Division as a whole and concluded that in the absence of measures to reduce
or avoid impacts, implementation of the Settlement would be expected to reduce
Friant Division long-term water contractor deliveries, on average, by about 170,000
acre feet each year (15% of the 1,150,000 acre feet of average deliveries to Friant
Division long-term contractors). The extent of the impact on any particular district
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will be influenced by the development of measures to reduce or avoid impacts as
part of the Water Management Goal, such as the groundwater banking and recharge opportunities in wet years, referenced below in the answer to question 7. The
impact on individual districts will also be influenced by cooperative arrangements
that we understand will be pursued among Friant districts to minimize impacts.
2. According to the California Department of Fish and Game, Fish Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of California (page 31), by 1928 there were very few salmon remaining in
the San Joaquin River above the Merced River and that the historical
salmon fishery that once existed had been severely depleted. Considering this is 15 years before the construction of Friant Dam, how
In the Fish Bulletin Number 17 article, G.H. Clark described a trend in the San
Joaquin River spring-run Chinook salmon population that still occurs with the fallrun Chinook salmon populations in the San Joaquin Basin. Since the escapement
surveys began in 1940, fall-run salmon abundance has been high for a period of 2.5
years following high spring flows during wet years and their abundance has been
low for a period of 2.5 years following low spring flows during critical and dry years.
The decline in the spring-run population that Clark reported during the late 1920s
occurred during several consecutive dry years, whereas the population rebounded to
56,000 fish in 1945 following three consecutive wet years.
3. What is a reasonable expectation of success relating to reintroduction
of spring-run Chinook salmon into the San Joaquin River? How many
program?
We expect that the spring-run population will fluctuate between several hundred
fish following critical water year types and several thousand fish following wet
water year types. Our basis for these estimates is that in dry and wetter years, the
San Joaquin River Restoration flows are similar to or greater than the flows that
occurred in Butte Creek from 2000 to 2005, when Butte Creek spring-run
escapement averaged about 7,500 spring-run fish. However, following critical-low
and critical-high water year types when Restoration Flows will be low, we expect
that several hundred fish will return to the San Joaquin River.
The Settling Parties do not believe that implementation of the Restoration Flows
will adversely impact downstream tributary fall run Chinook salmon. However, we
will work with those managing downstream tributary salmon runs to determine if
there are effects of the Restoration Flows on those runs, and how to eliminate impacts to the extent they exist. Further, the Stipulation of Settlement under Paragraph 15 Interim Research Program And Releases calls for implementation of a
program of Interim Flows in order to collect relevant data concerning flows, temperatures, fish needs, seepage losses, recirculation, recapture, and reuse.
There are few opportunities in the Central Valley to restore populations of springrun Chinook salmon. All of these opportunities are being pursued in the Sacramento
River Basin and several are well underway (like Butte Creek) or planned with funding identified (like Battle Creek). The existing populations of spring run and all
other opportunities to restore spring run are in close geographic proximity to one
another. Because the San Joaquin River is geographically distant from existing populations of spring-run Chinook salmon as well as within their historic range, restoring a self-sustaining population to the San Joaquin River will alleviate dependence
upon habitat conditions at other locations. This provides a unique opportunity in
terms of increasing the resiliency of the overall spring-run population in the Central
Valley.
quality improvements in the Delta.
The terms of the Settlement among other things call for certain restoration flow
hydrographs which are expected to create a continuous and perennial hydrologic
connection to the main stem San Joaquin River and therefore the Delta. Although
we have not yet fully analyzed the extent of expected water quality improvements
in the Delta, the source water associated with the restoration flows is typically superior in quality to water diverted directly from the southern Delta.
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The Stipulation of Settlement under Paragraph 16 calls for the creation of a Recovered Water Account. Friant contractors who have reduced deliveries as a result
of the Restoration Flows will be eligible to purchase unstorable water for $10 an
acre foot, which is significantly less than current prices. The intent of making this
water available at a lower price is to encourage ground water recharge programs
which in the past may not have been financially feasible. In addition, the Settlement provides for the development of a plan to reduce or avoid impacts of water
deliveries to all of the Friant Division long term contractors caused by the Interim
Flows and Restoration Flows.
the estimate?
Preliminary cost estimates to complete restoration actions and projects were developed ranging from $250 million to $800 million. Representatives of the Settling
Parties met with staff from the California Department of Water Resources (DWR),
which has responsibilities related to levees and flood protection in much of the restoration area, to discuss the actions necessary to implement the Restoration Goal.
DWRs preliminary cost estimates for implementation of the Restoration Goal is approximately $350 million to $570 million. The largest variables in these estimates
are the assumptions as to the specific type and extent of levee work that may be
required in connection with some of the projects. More precise cost estimates will
be completed in the course of project-specific planning activities, which will happen
as part of Settlement implementation.
Paragraph 20 of the Stipulation of Settlement governs the procedure by which the
Settling Parties may move the court (after December 31, 2025, and before July 1,
2026), or bring a new action (after July 1, 2026) to alter the flow regime established
by the settlement, if such an alteration is not mutually agreed upon. It does not
limit any rights or causes of action, if any, that a third party might have under existing law.
The proposed legislation does not eliminate any rights or causes of action under
existing law; nor does it create new rights or causes of actions. It is anticipated that
affected third parties would be able to seek review of settlement implementation actions under NEPA and other applicable law, to the extent allowed by such law and
the Administrative Procedure Act.
Mr. RADANOVICH. Thank you, Mr. Peltier, for your testimony.

Next is the Hon. Mike Chrisman, Secretary of the Resources
Agency, State of California.
Mr. Chrisman, welcome to the Subcommittee. You may begin.
STATEMENT OF THE HON. MIKE CHRISMAN, SECRETARY,
RESOURCES AGENCY, STATE OF CALIFORNIA, SACRAMENTO,
CALIFORNIA
Mr. CHRISMAN. Thank you, Mr. Chairman. Thank you for the
opportunity to testify today.
Joining me in the room are Nancy Saraceno, the Chief Deputy
Director of the Department of Water Resources, and someone not
unfamiliar to you, John McKalein, who is the Chief Deputy Director in the Department of Fish and Game. They are joining me
today, and will be part of the question-and-answer period if so
needed.
So again, nice to be here today, and I appreciate the opportunity
to appear before you to discuss this truly historical restoration.
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This, I think as all have said, this is truly a significant achievement with lasting positive impacts on the fisheries and the natural
environment, while at the same time protecting farmers and the
Central Valley economy. The two have to go hand in hand in this
historic settlement.
It creates a clear obligation to the settling parties, but more importantly an incredible opportunity to achieve a historic restoration
of a magnificent Western river.
The State of California has joined with Federal agencies and
other settling parties to sign the memorandum of understanding to
help implement the stipulation agreement. The plan enhancements
on the states second-largest river will have exceedingly far-reaching impacts.
State agencies, including the California Resources Agency, the
California Environmental Protection Agency, Department of Water
Resources, and Department of Fish and Game, and the settling
parties have pledged to work collaboratively to plan, design, and
fund and implement actions to support this important restoration
project.
A key goal of the settlement is to minimize the impacts to water
users who depend on the San Joaquin River. Under this plan,
farmers will achieve assurances of water supply and cost. The state
will help identify special projects and actions to meet these important objectives.
Additionally, improvements on the San Joaquin River will focus
on ecosystem restoration, to return the river to more natural conditions. The state will help design and to construct facilities to provide fish passage, minimum fish entrainment, establish riparian
habitat, implement the best available science and monitoring procedures so the system can be adaptively and effectively managed.
Terms of the settlement mandate the water releases from Friant
Dam will more than double, allowing native salmon to once again
spawn and complete their life cycle in the great San Joaquin River.
To address flooding and better protect residents living along the
San Joaquin River and adjoining areas, the state will work on new
and existing projects related to flood protection, including levy repair and improvements, maintenance, levy relocation, and work on
channel facilities.
While the state did not participate in negotiating the terms of
the stipulation agreement, we recognize the importance of defining
the states role in the implementation of this very important agreement. The stipulation of settlement and its restoration and water
management goals provide the initial elements of a plan for the
restoration. The settling parties must now turn to working with the
state, the many public and private interests along the San Joaquin
River, and the interested public to establish an effective implementation plan for this historic settlement.
Well, this is not obviously going to be a simple task. We indeed
are committed to working with the effective parties to ensure that
there will be success, and the costs of the other impacts are not
passed on to other parties.
The MOU that we have signed is intended to set out the initial
framework for state collaboration with the settling parties on this
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implementation. That MOU requires two things we may achieve as
we work together.
First, the Secretaries of the Interior and Commerce, along with
the Secretaries of the Environmental Protection Agency and the
Secretary for Resources for the State of California, must establish
a process by December 13 of 2006 for the state and Federal agencies to implement this agreement. This is important because the
stipulation of settlement assigns to the Secretary of Interior many
restoration tasks that will require Californias participation and approval for them to be achieved.
Second, the state and the settling parties will establish a mechanism to ensure public participation input into the implementation
of the settlement. Clearly, there are many, many vested interests
along the river, and many who have already spent years working
on these restoration efforts. To successfully restore the river, we
must indeed work collaboratively with all of these interests.
Again, the San Joaquin River, as we all know, is a critical waterway that serves crucial links in the states vast water delivery system. It is a river that is often called the Jewel of California Central
Valley, and it feeds into the Delta, a delta that feeds and supplies
two thirds of Californians, more than 22 million people in our
state, with drinking water.
The Governor has expressed strong support for the terms of the
settlement agreement, and the State of California is committed to
doing its part to achieve the restoration of this river.
Mr. Chairman, thank you again for holding the hearing.
[The prepared statement of Mr. Chrisman follows:]
Statement of Mike Chrisman, Secretary for Resources,
California Resources Agency
Subcommittee Chairman Radanovich and members of the Subcommittee, I appreciate the opportunity to appear before you today to discuss the historic San Joaquin
River Restoration Settlement which was signed last week.
This is a significant achievement that will have lasting positive impacts on fisheries and the natural environment while protecting farmers and the Central Valley
economy. It creates a clear obligation to the settling parties, but more importantly,
an incredible opportunity to achieve an historic restoration of a western river.
All Californians will be the beneficiaries of the environmental, economic, recreational, water management and flood protection success our collective efforts will
help to create. As a fourth generation Californian, I personally look forward to the
restoration of Californias second largest river as a significant milestone in responsible environmental stewardship.
The State of California has joined with federal agencies and other settling parties
to sign a Memorandum of Understanding to help implement the Stipulation of Settlement. The planned enhancements on the states second largest river will have farreaching benefits.
State agencies, including the Resources Agency, the California Environmental
Protection Agency, the Department of Water Resources and Department of Fish and
Game and the settling parties have pledged to work collaboratively to plan, design,
fund, and implement actions to support the restoration project.
The restoration of the San Joaquin River has long been elusive. Many thought
that it could never be done. I urge you to seize this opportunity and to work toward
making this dream a reality.
History of the San Joaquin River
Originating at 10,000 feet in the form of crystalline snow pack in the southern
Sierras, the San Joaquins original river bed stretches for 350 miles, making it Californias second longest river.
Tragically, however, the San Joaquin has long been recognized as one of Californias most damaged rivers. Dammed 60 years ago, it was engineered to save Central
Valley farmers from economic ruin. Responsible for the irrigation of more than one
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million acres of farmland, the San Joaquin River has played a central role in the
development and success of some of Californias most important and productive agricultural areas.
Along with the economic prosperity and agricultural bounty brought by altering
the path and flow of the San Joaquin, came environmental consequences. Construction of dams, channels and levees, during the last 100 years, has modified the river,
changing its natural streambed.
These diversions and modifications of the San Joaquin have resulted in diminished and, in some cases, near elimination of, Chinook salmon runs. Prior to the
construction of the Friant Dam in 1942, the San Joaquin River was the southernmost habitat for salmon in North America. However, the diversion of water from
the upper reaches of the river and subsequent reduced flows has significantly reduced the number of Chinook salmon native to the river.
Additionally, the habitat of the endangered kit fox has been largely degraded, and
seasonal wetlands and the migratory birds they host have both been severely compromised as a result of human impact on the river.
Even more troubling, lack of adequate flows in the San Joaquin threatens the
quality of local drinking water supplies.
But modern irrigation technology and other advances in water conservation and
agriculture afford us an opportunity to make restoration possible, while still maintaining the health and prosperity of neighboring farmland.
Facts about the settlement and Californias role
A key goal of the settlement is to minimize impacts to water users who depend
upon the San Joaquin River. Under the plan, farmers will receive assurances of
water supply and costs. The state will help to identify special projects and actions
to meet these objectives.
Improvements on the San Joaquin River will focus on ecosystem restoration to return the river to more natural conditions. The State will design and construct facilities to provide for fish passage and minimize fish entrainment, establish riparian
habitat, and implement the best available science and monitoring procedures so the
system can be adaptively and effectively managed.
Terms of the settlement mandate that water releases from Friant Dam will more
than double, allowing native salmon to once again spawn and complete their
lifecycle in the great San Joaquin.
To address flooding and better protect residents living along the San Joaquin
River and adjoining areas, the state will work on new and existing projects related
to flood protection including levee repairs and improvements, maintenance, levee relocation, and work on channel facilities.
While the state did not participate in negotiating terms of the Stipulation of Settlement, we recognized the importance of defining Californias role in the implementation of this agreement. The Stipulation of Settlement and its Restoration and
Water Management Goals provide the initial elements of a plan for restoration. The
settling parties must now turn to working with the state, the many public and private interests along the San Joaquin River and the interested public, to establish
an effective implementation plan for this historic settlement.
While this will not be a simple task, we are committed to working with all affected parties to ensure that it will be a success and that cost and other impacts
are not passed on to other parties. The MOU is intended to set out the initial framework for state collaboration with the settling parties on implementation.
It requires two things so that we may achieve this goal together;
First, the Secretaries of Interior and Commerce, along with the California Secretaries of Environmental Protection and Resources, must establish a process by December 13, 2006 for the state and federal agencies to implement the settlement.
This is important because the Stipulation of Settlement assigns to the Secretary of
Interior many restoration tasks that will require Californias participation and approval for them to be achieved.
Second, the state and the settling parties will establish a mechanism to ensure
public participation and input into the implementation of the settlement. Clearly,
there are many vested interests 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.
Conclusion
The San Joaquin River is a critical waterway that serves as a crucial link in the
states vast water-delivery network. This jewel of Californias Central Valley, as its
been called, is part of the Sacramento-San Joaquin River Delta. The Delta supplies
two-thirds of Californians, more than 22 million people, with their drinking water.
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Years of negotiations have 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.
Governor Schwarzenegger has expressed his strong support for the terms of the
settlement agreement. The State of California is committed to doing its part to
achieve San Joaquin River restoration.
Chairperson Radanovich and committee members: I urge you to consider the paramount significance of this settlement, and I respectfully ask for your help in the
long overdue restoration of the San Joaquin River.
Thank you.
Mr. RADANOVICH. Thank you, Mr. Chrisman, I appreciate your

testimony. Next is the Hon. Lois Wolk, Chair of the Committee on
Water, Parks, and Wildlife with the California State Assembly.
Ms. Wolk, welcome to the Subcommittee. And you may begin.
STATEMENT OF THE HON. LOIS WOLK, CHAIR, COMMITTEE
ON WATER, PARKS, AND WILDLIFE, CALIFORNIA STATE
ASSEMBLY, SACRAMENTO, CALIFORNIA
Ms. WOLK. Good morning, Mr. Chair and Members of the

Committee. I am very pleased to be here, and thank you very much
for inviting me to appear today.
I do chair the California Assembly Committee on Water, Parks,
and Wildlife. I also represent the northern and western part of the
Delta.
Your committee is the counterpart to ours here in Congress, and
both committees strive to balance the protection of our natural resources heritage with often conflicting, and sometimes contradictory, demands.
I appear today before you as an ardent advocate for this settlement. This has been a longstanding dispute, as you know. I support the proposed San Joaquin River Settlement because it does reflect a reasonable balance between water supply and restoration.
We fight a lot about water in California. Water conflicts, particularly court litigation, simply cost too much. Litigation costs money
to pay advocates, to pay expert witnesses. It costs time, and most
of all missed opportunities. And we fight, the ecosystem continues
its collapse.
There are three points that I would like to share. You have my
testimony, but there are three basic points.
The first is that I believe the settlement provides benefits for the
San Joaquin, that you have heard. Certainty for water users. Certainly the restoration have been extraordinary, fishery and river.
And something that hasnt been mentioned: a mechanism for future
collaboration between the parties. And that is important.
Breathing life-giving water back into this river is an extraordinary goal, worthy of the 21st Century. The agreement may also
provide flood protection benefits. While flood protection may not
have been one of the original purposes, some of the actions required by the settlement will improve flood protection, particularly
the expansion of the rivers capacity to 4500 cfs at various points.
The second message I would like to leave with you is that there
will be, in my view, secondary or indirect benefits that this settlement will provide for the Sacramento San Joaquin River Delta,
which has been mentioned is the heart, and you know that, of the
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California water system. It provides drinking water to well over
two thirds of the residents of this state.
The Delta is currently in crisis. In the last year the state has put
its best minds and best scientists from the University of California
to investigate the causes of what has been a substantial decline of
pelagic fish and much of the ecosystem that supports them. We
still do not have final answers, but we have seen indications that
there may be three categories of causes that have contributed to
this decline: the explosion of invasive species, water-quality contaminants, and water-project pumping operations.
These problems share a connection clearly to the flow of water
into and within the Delta. Introducing additional flows into the
Delta may well assist California in addressing the causes of the
Delta ecosystem crisis.
The third, and perhaps the most important, message for your
committee is how important it is to take the next step in implementing the agreement. This is a vast undertaking, no doubt about
it.
California needs Congress to enact the legislation necessary for
the implementation of the settlement. On our part in the Legislature, the Legislature can enact other support of legislation and
budget proposals to advance the settlements implementation. I am
proud that I was, along with my colleague, Senator Machado, one
of the legislators who fought for state funding in this years budget
to support a settlement. There is $2 million that is tied to the settlement and could be used for this purpose.
Further state legislation, for example, could create a San Joaquin
River Program, including a special San Joaquin River Fund to authorize both water supply and river restoration projects, proceeding
together and consistent with the settlement. I have supported such
legislation along with my colleague, Senator Machado, in the past;
but before the settlement it did not enjoy the necessary broad support that todays settlement may well provide.
I also dont need to mention, but I shall, that on the November
ballot there is a proposition that has earmarked $100 million
Proposition 84, $100 millionthat would go toward the San
Joaquin support of the settlement, and there may be other categories which projects would be eligible for, as well.
We dont read tea leaves here, I know, but we certainly hope that
the people of the State of California will step up and support many
positive things in November.
I hope, in conclusion, that our two governments, the state and
Federal government, can find a way to collaborate on promoting
the most effective and balanced use of San Joaquins water for agriculture, for urban use, and for the fishery. I hope you will support
the settlement strongly, and I know you have been working hard
to resolve some of these third-party concerns.
The alternative is that the judge will decide and will impose a
settlement. And I have always believed, and I am sure you agree
with me, that water managers on the ground and the landowners
and the environmentalists who work on the ground can figure out
the best deal, if they choose to.
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This is a well-crafted settlement. It is a settlement for the 21st
Century. It should be a model for settling other California water
conflicts, and I certainly urge your support.
And thank you once again for allowing me the brief testimony.
Thank you.
[The prepared statement of Ms. Wolk follows:]
Statement of The Honorable Lois G. Wolk, Chair,
Assembly Committee on Water, Parks & Wildlife
Good morning, Mr. Chairman and members. My name is Lois Wolk and I chair
the California Assembly Committee on Water, Parks and Wildlife. I also represent
the northern part of the Delta. I am honored by your invitation to appear today before the subcommittee, which is our counterpart in Congress. Both committees
strive to balance the protection of our natural resources heritage with conflicting
and often contradictory demands.
I. Support for San Joaquin River Settlement
I appear before you today as an ardent advocate for settlement of the long-standing dispute on the San Joaquin River. While the Friant division of the Central Valley Project has produced vast abundance of agricultural products, it has produced
substantial conflict as well. The most recent litigationand the one we all are here
today to resolvehas lasted 18 years, often sapping the financial resources and political energy of the litigants as well as much of the California water community.
I support the proposed San Joaquin River settlement because it reflects a reasonable balance between water supply reliability and River restoration. This settlement
will confer benefits on many Californians, not just the ones who have spent the last
two decades in court.
A. Value of Resolving Long-Standing Conflict
This settlement offers all of us an opportunity to move beyond conflict. Water conflictsparticularly court litigationsimply cost too much. It costs money to pay our
advocatesthe lawyers and expert witnesses. It costs time and missed opportunities. As we fight, we too often ignore the continuing and changing needs to operate,
maintain and rebuild the water infrastructure that may have served us well in another time. But with improved technology and increased value for each drop of
water, we need to invest in creating the most efficient water system possibleone
that balances the many competing water needsagricultural, urban and environmental. Moreover, the inherent risks of litigation put the use of our water resources
and water supply reliability in jeopardy.
Finally, as we fight, the ecosystem collapses. The public trust resources that we
have a duty to protect deteriorate. California cannot afford the costs of conflict.
Thats why Im here today to urge you to support the federal legislation that will
let California move beyond this long-standing conflict.
I hope that our two governmentsstate and federalcan find a way to collaborate on promoting the most effective and balanced use of the San Joaquins water
for agriculture, cities and the fishery. Only recently did the Schwarzenegger Administration begin investing time, attention and resources on improving the situation
on the San Joaquin. I am proud to be one of the legislators who fought for State
funding in this years budget to support this settlement. I was also encouraged to
see that the draft legislation includes a savings clause for existing federal law requiring Central Valley Project compliance with State law. This provision will protect
the States sovereignty and ensure the States proper role in overseeing the San
Joaquin Rivers water resources.
B. Settlement Helps Resolve Multiple San Joaquin River Issues
I would like to share a broader perspective about how this helps California as a
whole.
Certainty for Water Users. First, there is the added certainty for water users
throughout the San Joaquin River basin. For more than a decade, we have crafted
water agreements that would allow for some uncertainty due to this litigation. The
Federal Government and water users on San Joaquin tributaries crafted the 1998
San Joaquin River Agreement, often called the VAMP (or the Vernalis Adaptive
Management Program), leaving some flexibility for an outcome of this litigation. The
States Delta water quality standards were imposed on all the Central Valley Project
permits, to allow for the possibility that water might some day come down the
mainstem from Friant to the Delta. This time of bracing for uncertainty can now
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end, and we can begin the conversation about how to promote greater water certainty throughout the San Joaquin system.
Assistance for Fishery Resources. And, of course, this settlement will help the San
Joaquin systems fishery resources. I understand there may be some who question
how much the water released under this agreement will help the spring run and,
perhaps, may not help fall run salmon at all. But let us keep in mind our starting
pointa dead riverand a basic factfish need water for life. Breathing life-giving
water back into this rivereven if not as much as some suggested would be requiredis better for the fishery than dry sand. This water will contribute to the
fishery needs in the San Joaquin River and downstream in the Sacramento-San
Joaquin Delta.
Diluted Salinity. This infusion of water also contributes to diluting the salinity
flowing downstream from the westside of the San Joaquin Valley to the Delta. Some
of you may remember the Kesterson wildlife debacle when the last drain operated
in the 1980s. This settlement will contribute a new water resource to this chronic
salinity problem on the San Joaquin and in the Delta. Even a small contribution
will nevertheless be a contribution.
Flood Protection. While flood protection was not one of the original purposes, some
of the actions required by the settlement will improve flood protection, particularly
the expansion of the Rivers capacity to 4,500 cfs at various points. This last year,
the small town of Firebaugh suffered a huge risk that its levees would fail and deluge the town. This settlement provides a small indirect flood protection benefit that,
in these years after Hurricane Katrina, may be appreciated.
II. Benefits for the Sacramento-San Joaquin Delta
This settlements benefits reach beyond the confines of the San Joaquin River,
particularly to the broader Sacramento-San Joaquin River DeltaCalifornias Critical Crossroads for water. I note that the Deltas name includes the San Joaquin
River. The Delta is formed by two of Californias great riversthe Sacramento AND
the San Joaquin. Admittedly, the settlement was not necessarily intended, nor are
there any commitments, for the benefit of the Delta. But, when you begin moving
toward a healthier river, the Delta cannot help gaining some sort of benefit, albeit
unquantified.
A. Delta
The Delta currently suffers from two inter-related problemswater quality and
an ecosystem crisis. The Deltas water quality issues are multi-faceted, involving salinity (both drainage and saltwater intrusion), contaminants (including pesticides,
mercury and urban runoff), and water circulation or flow standards. Increasing the
availability of San Joaquin River flows will, in any case, contribute to improving
water quality in the South Delta, where the San Joaquin River flows into the Delta.
Also, in the last year, the State has been investigating the causes of the substantial decline of pelagic fish (e.g. delta smelt) and much of the ecosystem that supports
them. We still do not have final answers, but we have seen indications that three
categories of causes have contributed to this declineinvasive species, contaminants
and water project pumping operationsand we have recognized that there are connections among all three of those categories. Those categories also share a connection to the flow of water into and within the Delta. The cause of the decline is likely
related to all of these causes. So, the best news is that introducing additional flows
into the Delta may assist California in addressing the root causes of the Delta ecosystem crisis.
B. Export Water Supplies
Because Californias export water communitiesin the San Joaquin Valley and
Southern Californiarely on water exported from the Delta, any assistance the
Delta receives can help the water supply reliability for export water supplies. It may
help the two large water projects comply with the interior Delta salinity standards.
Or the additional San Joaquin River inflows may improve the export-inflow ratios
that regulate export-pumping operations. In either case, export water supply may
improve because there is more water flowing into the Delta.
III. Next Steps
The next steps to implement the San Joaquin River settlement involve both of our
legislative bodies. First, California needs the Congress to enact the legislation necessary for implementation of the settlement, including elimination of the CVPIA
prohibition on Friant releases for these purposes. Then, I can assist the effort in
the California Legislature to enact other supportive legislation and budget proposals
to advance the settlements implementation. For example, we may create a San
Joaquin River program, including a special San Joaquin River fund, to authorize
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both water supply and River restoration projects proceeding together, and consistent
with the settlement. I have supported such legislation in this past session, but before the settlement, it did not enjoy the necessary broad support that todays settlement may provide. With our two legislative bodies working together, I have no
doubt that we will succeed in making this settlement a great success!
[The response to questions submitted for the record by Ms. Wolk

follows:]
OCTOBER 19, 2006
Honorable Richard Pombo, Chairman
United States House of Representatives
Subject: San Joaquin River Litigation Settlement
Dear Congressman Pombo:
Thank you for the assistance that you and the chair of your Subcommittee on
Water and Power, Representative George Radanovich, have provided in supporting
the San Joaquin River settlement. I have heard positive reports about the final resolution of the issues surrounding the supporting federal legislation. I look forward
to Congress acting at its earliest opportunity to complete the settlement process.
Having reviewed the questions submitted by Representative Nunes, I see that he
has identified all the issues where the settling parties have the least certainty and
specific information. Such uncertainty is not unusual when settlements arise. Settlements of such disputes are nevertheless preferable to continued litigation and the
uncertainty of placing the decision only in the hands of one judge, regardless who
that judge is.
The questions are properly directed to the settling parties, who have what information is available on the specific issues Mr. Nunes has raised. Many of the issues,
however, will require future resolutionwith participation by the State of California
in that resolution. For fishery improvements, water quality and groundwater overdraft, for example, the State will need to continue to play an active role in addressing how to improve San Joaquin River conditions. The State already has committed
to support this settlement, with an appropriation in this years budget to support
implementation of the settlement. This settlement is just the first step toward restoring the San Joaquin River and supporting the water needs of Friant Division
water users.
I look forward to working with you and other members of the California Congressional delegation, as the settling parties and our two governments continue working
on the best use for Californias limited water resources.
SINCERELY,
LOIS WOLK, CHAIR
ASSEMBLY COMMITTEE ON WATER, PARKS & WILDLIFE
Mr. RADANOVICH. Thank you, Mrs. Wolk, for your testimony. It

was very valuable; I do appreciate that.
We are going to have a series of three votes coming up somewhere between 11 and 11:30. It is our hope to be done with the
first panel, but again we will go as long as we need to to get every
question answered.
So I am going to start, and then begin to defer to the others.
Again, thank you for being here. And I do want to stress that a
lot of this hearing is going to be about addressing potential thirdparty impacts to this agreement, because third parties were not
party to the settlement agreements, but we need to get them
resolved.
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But I want to be really clear about what is at stake here if this
settlement does fall apart. And my question is for just about anybody on the panel, if you wish to answer it, what happens if this
settlement fails? I mean, what are the choices if we dont success
I guess is the question? And I would invite comment on that.
Mr. UPTON. At least for the farmers, I mean, the judge has already indicated that the feds are in violation of 5937. So he is
going to release water, he has that authority.
And then if it becomes a question of whether it is enough water
to revive to self-sustain the salmon fishery, he has said that his
view is the historic fishery, some semblance of that is what has to
be restored.
So we would look, from our perspective, at an uncertain situation. If the initial release wasnt enough, then he would come back
and keep releasing until he did it. And we would obviously have
none of the mitigation measures that we have in this settlement.
So we would basically be looking at fallowing land. And how do
we let our users know that there is just water available and nothing we can do about it?
Mr. CANDEE. I guess I would like to emphasize that one of the
benefits of settlement is that we not only accomplish the restoration of the river and the protection and stability for the Friant
farmers, but we actually set up a 20-year program of cooperation
between farmers, environmental and fishing groups, and the Federal government and the state government. And I think by itself
is a critical piece of this agreement.
And so it would be a shame to, if Congress didnt want to support
it and bless it and create an impediment to accomplishing that cooperation in this very historic undertaking. So we are optimistic
that now that somehow the three parties were able to reach agreement, that we can finish the job and reach final approval from Congress.
Thank you.
Mr. PELTIER. It is up to the Federal Courts to approve the settlement itself. We are scheduled for a hearing in late October to
present and hopefully receive court approval. The court will also
hear from people who have concerns, the third parties. So that
process is ahead of us.
The Federal government does have considerable authorities,
flowing largely out of the Central Valley Project Improvement Act,
to begin implementation of the settlement agreement in the sense
of doing planning and the initial work. I can imagine if Congress
does not enact the legislation to provide full authorization for the
Federal government to implement the settlement, that we will simply limp along; the conflict will continue. The parties, we will be
in kind of a limbo where nobody is happy, and anger continues to
be the word of the day instead of progress.
Mr. CHRISMAN. From our perspective, following on what the
other three speakers have said, failure of this is unacceptable. I
mean, we essentially have to be moving forward. We have to work
hand in glove to try to make this work. Too much good work has
gone into this. Having the parties coming to this stage I think is
truly historic. We need to be working jointly to make it happen.
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Because what you heard here is just kind of the beginnings of
what the impacts may be if this settlement is not consummated. So
we are here to support everything we can do to get it done.
Ms. WOLK. Mr. Chair, I think I spoke to that in my statement.
I believe a settlement, there would be a court decision. I dont believe that it would meet the test of balance; it might make some
people very happy, and others very unhappy. I think balance is the
key, and I think that is what you get here in the settlement.
More money would be wasted, more energy and time would be
absorbed by all of this for the next umpteen years. And we have
propositions that are on the ballot. We have money that may be
ready to support positive collaborative projects. It is time to get
those projects ready to go, and look forward rather than backward,
and the uncertainty would be tremendous.
Mr. RADANOVICH. Thank you very much for your answer to those
questions.
Before I defer to other Members, I will say that we will stick to
the five-minute rule on questions, but we will continue to go back
until all the questions are asked.
I now recognize the Ranking Member, Ms. Napolitano.
Ms. NAPOLITANO. Thank you, Mr. Chair. Mr. Candee, outside of
the Central Valley and the Delta, exactly who will benefit from the
settlement?
Mr. CANDEE. Well, as I mentioned in my testimony, we think the
benefits flow very widely. It is not just about the parties to the
case, and it is not just about the San Joaquin Valley.
We represent, for example, commercial fishermen. And there are
North Coast communities that have suffered as a result of the decline of the salmon population, and they are looking for a revitalization, a rebuilding of the salmon in California. There are people
who are working very hard right now in the Sacramento Valley to
recover the Spring Run Salmon. I think they are veryboth the
Federal and state agencies and all of us in the environmental community are very enthusiastic about beginning a recovery program
or restoration of Spring Run Salmon in the San Joaquin, its historic habitat on the San Joaquin River.
There are people in Southern California who obviously have been
hoping for improvements in the Delta, both in terms of water supply stability and water quality improvement. So I think the benefits are really very far and wide.
And I know there is a big focus here at the hearing on some specific potential third-party impacts that have been identified. And
all of us on the panel have spent an enormous amount of time trying to understand those impacts and try to address them. But we
also need to recognize that there are an enormous amount of benefits, as well, and that is another good reason to quickly move to implement the settlement.
Ms. NAPOLITANO. You did touch upon the water quality. And it
does make sense that we would see some water quality improvements if we release more freshwater to flow into the Delta.
Have any studies or modeling been done to document the water
quality effects of implementing the settlement? And will the salinity be reduced in the San Joaquin River or in the Delta? And what
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are the pollutants that are already present? And then the last
question. Will water exported to Southern California be improved?
Mr. CANDEE. Our belief and understanding based on a lot of
state studies is that yes, there will be improvements in all of those
respects.
I mean, it is interesting. Although we have had this case going
for 18 years, there have been a number of other proceedings trying
to look at the challenges and the problems on the San Joaquin
River, including the Lower San Joaquin River. And one of those,
of course, has been the water quality impacts.
And there are a number of studies from the Regional Water
Quality Board indicating that there is a recurring and persistent
problem of pollution, and also salinity in the Lower River and in
the Delta. We believe this just cant possibly be anything but beneficial to have hundreds of thousands of acre-feet of freshwater coming down from the Upper San Joaquin.
Remember, historically the San Joaquin is the second-largest
tributary to the Delta. It has been disconnected from the Delta for
50 years. And it is critical, I think, to the future water quality improvement. So we see a number of benefits. It may also help people
not all the way down to the Delta, but part of the way downstream,
meet their own water quality obligations, either under current law
or under future standards.
So we think there is, again as I mentioned before, a number of
benefits. And some of this is laid out in some of the materials we
have submitted to the record.
Ms. NAPOLITANO. And also to Southern California, I would hope.
Mr. CANDEE. Absolutely. And you know, in terms of the studies,
I mean, one of the studies that needs to be further done, and will
be done as part of the environmental reviews, will be, of course, all
of the benefits and impacts of the restoration program.
But for a number of years people in the export area have looked
at how do we improve the water quality situation in the Delta, and
addition of freshwater flows. I know at the state regulatory agencies, that has always been a critical piece. And that is how we get
to improved water quality for all of the experts.
Ms. NAPOLITANO. Ms. Wolk, could you describe in more detail
how you think this settlement will benefit the State of California?
And why should my constituents in the Southern California area
be concerned or care about this?
Ms. WOLK. When they turn on their tap, much of their water
two thirds of the watercomes from the Delta. So this has been
an ongoing issue in our committee.
We have a committee that is made up mostly of people from
Southern California, members from Southern California. And when
we talk about the Delta and its importance to the entire state, and
the importance of levees, for example, the importance of water
quality, they understand that their water essentially comes from
that part of the state.
So it seems to me that any introduction of freshwater will assist,
we hope, in some of the water quality issues that right now are a
major, major concern in the Delta.
We dont know, as I said in my testimony, we dont know the
exact cause for the failure of the Delta, the crisis that the Delta
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is in. But we do know that introduction, that water is a major feature of all of that, and more freshwater, the better.
Ms. NAPOLITANO. I just need to make a correction, because about
a third of Southern California comes from the Delta. Thank you.
Mr. RADANOVICH. Thank you, Ms. Napolitano. Now I recognize
the Chairman of the Committee, Mr. Pombo.
Mr. POMBO. Thank you. I guess just a couple of questions for the
whole panel. The first one is in regards to third-party impacts.
It is my understanding from meetings that we have had in the
past, that everyone is in agreement on not having a third-party impact. And I would like the witnesses to comment on that.
Mr. UPTON. We agree.
[Laughter.]
Mr. CANDEE. But the settlement actually has a provision, speaking specifically to that point, in which all of the settling parties
make clear that it is neither our intent nor our expectation that
there will be any material adverse impact.
So as you indicated, we have all spent a lot of time, not just in
the last two days, but actually in the last six months, trying to
reach out to third parties, understand their concerns.
For example, I know one of the opening statements mentioned
the issue of flexibility and timing of releases of water because of
the potential for temperature impacts, because there are Fall Run
programs on the tributaries. And obviously one of the goals of this
settlement is to rebuild and strengthen the Fall Run population. So
we all have a shared interest in that.
As a result of those discussionsand many of these were way before the June 30 conclusion of the settlement, these were in the
springtimewe went back and we collectivelythe Friant parties,
the environmental parties, and the governmentredid our
hydrograph exhibit, the Exhibit B, and created new flexibility in
the settlement, so that we could adjust the release of water out of
Friant to accomplish both the restoration goal of the settlement,
and also meet the concerns, the temperature issues for example,
downstream.
I am sorry for the long example, but that was one where we really spent a lot of time trying to understand the concern of the third
parties.
Mr. PELTIER. If I could, for just a second, address the water quality issue and make sure the record is clear. I think from the perspective of reclamation, we are uncertain as to the water quality
benefits that would be associated. Certainly intuitively we know
more freshwater in a river is good.
However, there are many factors that affect water quality in San
Joaquin River. There are many players, there are many diversions,
there are many, many things that affect us.
One thing I can guarantee and assure the Committee of is that
we will continue to meet the standards, the water quality standards established by the State Water Resource Control Board. We
are going to have a fight over those standards because we believe
that the State Board has looked too narrowly at the state and Federal projects to meet those standards. But we will go forward, and
that will be a continued area of tug-of-war.
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On the question of third-party impacts, I think we made great
progress yesterday in addressing some of the real estate, the landowner, property owner adjacent to the river concerns. And I think
the direction we are heading is before we getwe have a lot more
planning to do, and a lot more determinations to make, about how
exactly kind of the lower stretch of the river is going to be managed
and look. And that will possibly entail, depending on where we go,
us coming back to Congress and having a more complete hearing
and further public involvement at the Congressional level on that
matter.
There are other issues related to endangered species downstream
that continue to be sensitive. Certainly the reality of bringing the
Spring Run Salmon into a system where it has been eliminated for
many years has, you can imagine the collateral concerns that that
raises.
But we dont want to lose sight of the reality that this is, but for
the settlement, these fish would not be there at all. They would not
exist. So it is the settlement that creates an opportunity, and it
also creates a challenge for us as to how we make sure that opportunity remains a positive for the people on the San Joaquin River
and in the Delta. Thank you.
Mr. POMBO. So was that a yes? Sounded like it.
[Laughter.]
Mr. PELTIER. Indeed.
Mr. POMBO. Just making sure.
Mr. CHRISMAN. From a state perspective, quite frankly, and Mr.
Candee and others have indicated the fact that third-party impacts,
the fact that we didnt want third-party impacts out of the settlement, it was recognized in the stipulation agreement.
From a state perspective, I mean, we strongly support the restoration, obviously this river and the reintroduction of the salmon.
We also need to make sure that we take measures that dont adversely impact water used from the Delta and other impacts on the
Delta.
So, quite frankly, this is going to be a big challenge. And we
hear, quite frankly, our folks were involved, Lester Snow, our Director of Water Resource, Nancy Saraceno and John McKalein were
involved in the conversations here yesterday with Senator Feinstein. It sounds like we are making good progress, but it is something we are going to have to spend a lot of time on.
We at the state level are committed to working with everybody
to make sure that we live up to the commitments in that stipulation agreement.
Mr. POMBO. Thank you. You are going to have to do it anyway,
so it is all right. Assemblywoman?
Ms. NAPOLITANO. I dont have much to add to what has been
said. I think the point is that the intent of the agreement is not
to harm others, but to look at the positive. And there are probably
positive third-party impacts that will result from this. It takes a
leap of faith at this point, but I do believe that what you have
heard is indication of how this will move forward.
Mr. POMBO. I believe that you are correct, that there are positive
aspects on third parties, and that will be taken into consideration.
But I think all of us, as well as you, have had concerns raised by
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people who were not party to the settlement not part of the negotiations, that have very serious concerns about the impact on them.
I think the easiest thing to do when you are negotiating in reaching a settlement is to have somebody else pay for it, or have somebody else hurt by it who is not in the room. And we just want to
make sure that doesnt happen in this case.
Yes, maam.
Ms. WOLK. May I just respond to that? I agree with you, Congressman.
I think one of the important things in that case and for the future is to ensure that there is some kind of process whereby these
impacts can be addressed. And my understanding is that the proposal, that the settlement also encourages a restoration administrator, and all parties, the major parties are at the table.
And I think that if you provide that kind of mechanism for resolution of issues that come up in the future, that goes a long way
toward solving these problems.
Mr. POMBO. Thank you. Thank you, Mr. Chairman.
Mr. RADANOVICH. Thank you, Mr. Chairman. Mr. Cardoza.
Mr. CARDOZA. Thank you, Mr. Chairman. I am heartened and relieved to hear that everyone agrees that third parties should not
be impacted. Yet the agreement does not provide ESA protections
to the tributary agencies or the Delta exporters currently, as it is
currently written in the agreement. We have had negotiations, we
are making progress on that.
My question to Secretary Chrisman is, do you support language
to protect the tributary agencies and the Delta exporters on the
question of ESA protections?
Mr. CHRISMAN. We are going to have to get to that. I mean, at
the end of the day, part of the stipulation agreement, no adverse
impact to third parties, obviously an integral part of that is the
work that we are doing in the Delta. An integral part of that is the
ESA protection. We understand that conversations and negotiations are ongoing right now. We want to be a party to that, because
we have, again, there is a Federal law, there is a state law in ESA
that we have to match. And so at the end of the day, we are going
to want to be a party to those conversations, and ultimately a part
of the solutions.
Mr. CARDOZA. Mr. Upton?
Mr. UPTON. Yes, sir.
Mr. CARDOZA. Same question.
Mr. UPTON. Yes, well, we have had this discussion with the tribs
for quite a while. They brought this up early and often, and I think
they have a legitimate point, that they did not want to put their
constituents at risk for huge water losses or huge financial considerations because of the inadvertent introduction into their system
of a spring run.
So we support the language to make sure that they are taken
care of. And I think we are pretty close on getting that language.
Mr. CARDOZA. Mr. Candee, would you like to answer the same
question?
Mr. CANDEE. Yes. As I think you know, Congressman Cardoza,
as a result of the meetings and the comments we have received
from third parties on this issue, the settlings parties went back and
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actually modified the settlement after it had been negotiated to add
two sentences with an explicit acknowledgment that all of the parties, including the National Marine Fisheries Service+, which of
course has regulatory authority over the Spring Run Salmon, anticipate that take protection would be provided for the population
that is reintroduced.
So the National Marine Fisheries Service also prepared a briefing memo for the third parties which laid out that there are actually multiple ways to provide those protections. They have a lot of
discretionary authority.
So as you know, we all talked a lot about this recently, and there
has been, I think, a lot of effort, collective effort to try to understand what the problems are and how to deal with them.
Mr. CARDOZA. You know, I concur with you, Mr. Candee, that we
have had those discussions. I commend all the parties, including
yourselves, for trying to get together.
This is one of those cases where, because the law can get you
into so much trouble and it can be litigated in the future, we have
to be very careful on how we craft this legislation, both from your
perspective and from ours, to make sure that we all understand
what we are doing, and we understand the impacts on the third
parties. Including the Delta, where all of the different species
comes together, and protecting one may impact another. And that
is why we are having these detailed conversations.
Mr. CANDEE. Absolutely. And I think, you know, if my colleague
and member of our coalition, Zeke Grader, was here on behalf of
the commercial fishermen, he would point out that there was a
very, very big third-party impact a few decades ago that was
caused by the beginning of the Friant Division and the operation
of the Friant Division. And one of the goals, of course, of the settlement is to try to undo some of that damage.
And obviously we are not going to turn back the clock and bring
back the historic run at the same levels, but we have, I think, laid
out a program here to bring back spring run, reintroduce spring
run. I think we need to be very careful about how we manage this
issue, because we want to make sure that if we are going to work
upstream to rebuild spring run, we dont want to then do something inadvertently in the Delta that hurts that population.
Mr. CARDOZA. Let me stop you there, because I have two more
questions, and I think we understand.
Mr. CANDEE. Yes, OK.
Mr. CARDOZA. The point is, however, that there are also potential
third-party impacts to the exporters, to others who have pumps in
the Delta. And so when we talk about no third-party impacts, we
still have work to do in this area to get to the goal that we all have
of protecting the third parties, and protecting the other species.
If I could go to Jason. Mr. Peltier, I understand that significant
progress has been made regarding Reach 4B. What assurances can
you give me and the Committee that the impact of the flows will
be mitigated before a substantial quantity of water is released?
And what assurances can you give that sufficient funding is available for these impacts if, as the Committee knows, in Reach 4B the
channel in some places exists only on maps, and doesnt exist any
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longer in reality, and it cannot handle the expected flows. So I
would put that question to you, sir.
Mr. PELTIER. I can give you little firm assurance that that mitigation would be put in place today, simply because I dont think
the settlement that we have negotiated in the draft legislation that
we have put together goes as far as the discussions that have been
going on subsequent to our coming to closure.
If those subsequent discussions and progress in the legislation
we are focusing on this topic, that, you know, at some subsequent
point we testify, if that language is what is before us, then that is
when we will be able to comment on it. But today we are limited.
But I can assure you that the desire and, you know, the motivation and the staying at the table on the part of the Administration
will last on and on into the future.
Mr. CARDOZA. Thank you. Mr. Chair, I know I have the red light,
but I do have two additional questions. I would like a second
round.
Mr. RADANOVICH. Oh, you will definitely get a second round. You
can go as long as you want.
Mr. CARDOZA. Yes, that is what I am
Mr. RADANOVICH. Yes, we wont finish before we go to vote. We
do have a vote call on, but I think we can get Mr. Nuness questions in. Then we will break and vote. It will be about a half hour,
it is about three votes. So we will be back as soon as we can.
Thank you, Mr. Cardoza. Mr. Nunes.
Mr. NUNES. Thank you, Mr. Radanovich. Mr. Candee, typically
the way that Congress has worked on, when we enact legislation
we typically will do a feasibility study, followed by an authorization, followed by an appropriation.
This, what you are asking us to do is all of that at once, do you
agree?
Mr. CANDEE. Well, let me get
Mr. NUNES. And not just you, you and Friant.
Mr. CANDEE. I was going to say when Kole Upton and I were finished last October or November, there was no proposed legislation.
The Federal government is the implementing agency, and it is the
Federal government that needs, in the first instance, needs the permission and the authority from Congress to do the complete array
of actions under the settlement. And of course, in terms of funding,
you need to provide the authorization.
So I think we understand, and I think Mr. Peltier discussed this
in his testimony, that unlike a project that just is developed on its
own, this is an attempt to settle litigation. It is much more like an
Indian water rights settlement in that sense.
Mr. NUNES. But, I mean, Congress did decide to dry up the river.
And you are essentially asking us to pass legislation that does a
feasibility study, authorizes and appropriates all at one time. That
is what the settlement does.
And so my question to you is, you know, how is this any different
than water storage projects, just for example, or water banking
projects for example? Should we do those projects the same way we
are doing this?
Mr. CANDEE. There are many parts to your question. First of all,
I dont agree with the premise that Congress had no interest in
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downstream releases when they authorized Friant Dam. After all,
one of the authorizing purposes of Friant Dam was to help with salinity intrusion in the Delta. That assumes a connection between
releases from Friant and the Delta.
Second, I think in terms of the
Mr. NUNES. I mean, this question specifically is to the fact that
you have come to us, you and Friantand I will give Mr. Upton
his chance to speak, alsohave come to us and asked us to enact
legislation that does all this at one time. And I mean, we havent
done any feasibility studies. We dont know what could happen, for
example, if we put water down this section of 4B, just as an example, or water right by Fresno. We dont know what is going to happen on a whole host of areas, what could happen. And that is typically why the Congress asks for feasibility studies before we enact
any type of authorization or appropriation.
Mr. CANDEE. There are two very important differences, I think,
between the model you are talking about and what you have before
you here.
First of all, as Exhibit C to the settlement and a number of provisions to the settlement indicate, the very first thing that is done
is a number of studies answering exactly those questions. And to
develop those answers, in some cases we havent even made the
choice yet as to do we go this way or go that way.
And second, there is no request for immediate new appropriations. This is an authorizing bill, it is not an appropriations bill.
Mr. NUNES. Well, I mean, you are authorizing the use of restoration fund money.
Mr. CANDEE. Absolutely, yes.
Mr. NUNES. And you are changing the payment structure. I think
the appropriators would have a differing opinion of you, the Members of Congress here in Washington.
Mr. CANDEE. I understand that point, and I think that is in some
ways one of the advantages of this settlement. Not only do we have
the State of California that has already put a bond, a ballot initiative on to provide $100 million up front, but we also have I think
a fairly creative proposal from OMB and Interior and the Friant
water users to try to make some of the payments from the farmers
in California available for this program, without going to the appropriators for new funding.
But I guess the point I am trying to make is if we are able to
give Interior the approval it needs to fully implement the settlement, and I agree with
Mr. NUNES. Well, yes, I mean, you are asking us to authorize
and appropriate money to enact the settlement. I understand, that
is what you are asking. And so my question is, why in the past
when we have talked about other projects, storage projects, offstream storage water projects, typically your organization has opposed those efforts.
And I do want to follow up, you know, just with one part of your
testimony. You talked about the restoration flows improving water
quality in the Delta. However, it is my understanding that most of
the time, during that time when the water will be released to the
Delta, we dont have a water quality problem during that time
period.
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Mr. CANDEE. Well, there are flows year around, and there are
different amounts. And obviously there is a higher flow than
Mr. NUNES. But during that time period we dont have a water
quality problem. So I mean, therefore your statement in your testimony is not really correct.
Mr. CANDEE. No, actually, as I think Assemblywoman Wolk
pointed out, one of the big problems that we have in the Delta is
the uncertainty. A lot of people assume that hey, if you move
Mr. NUNES. Right, but when you are going to release the water
under this agreement, it is going to go down the river into the
Delta at a time where there is not a water quality problem.
Mr. CANDEE. There will be water released year around. It is true
that there are larger pulse flows in certain periods, and we believe
there will be a water quality benefit both part of the way downstream and in the Delta.
But you know, I want to get back to
Mr. NUNES. I think, Mr. Candee, I know that we have a vote.
And I know, Mr. Chairman, I think we are going to have to go before the rest of it. I look forward to hearing that response when I
get back.
Mr. CANDEE. Thank you.
Mr. RADANOVICH. All right. Thank you, Mr. Nunes. And again,
we will go into recess to vote. It will be about 30 minutes. If all
Members can come back quickly so that you can get your questions
in to the first panel, it would be much appreciated. And we will
now recess.
[Recess.]
Mr. RADANOVICH. We are back in session, and we will start a
new round of questions.
I do want to get into some of the issues of the third party, on
the 4B Reach funding. And this is a question for the whole panel.
It is important that this settlement be funded from the beginning, but we have to be realistic about how we fund this and what
we fund. One of the funding issues is restoring the Reach 4B for
basin pulse flows. It appears that no one knows how much this will
cost. So doesnt it make sense to do the study, so that we know
what we are getting into before we authorize a big-ticket item that,
frankly, may never work?
I guess my question is, does it make sense that before we get
into the issue of 4B, that we do the studies before we do the funding of it? And that is for anybody on the panel.
Mr. UPTON. Well, from Friants perspective, yes, that makes a lot
of sense to us.
Mr. RADANOVICH. OK.
Mr. CANDEE. Mr. Chairman, the folks in that region have raised
that question. And as the Chairman knows, the settlement contemplates two different stages, two phases of the work on Reach
4B.
The big jump is from 475 cfs of a base flow amount to 4500 cfs
for the full pulse flows. And the settling parties decided to put that
second phase off. It is one of the last physical improvements to be
completed under the schedule, and it assumes a lot of study to be
done before that choice is made.
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So the settlement explicitly contemplates the Interior Department making a subsequent decision after the studies are completed.
Mr. RADANOVICH. All right, thank you. Next question is for either
Secretary Chrisman or both, and Jason Peltier. Could the settlement affect the state and Federal pumping operations in the Delta
without ESA protections?
Mr. CHRISMAN. That is a hard one right now. I mean, it is again
something we are going to have to work through. It could very well.
But at the end of the day we are going to have to, in the context
of the settlement we are going to have to figure out how to make
it work.
So it is something that we are going to have to really drill down
on and look at. And we are not there yet.
Mr. RADANOVICH. OK.
Mr. PELTIER. When you say could it, I would say yes, it could.
The specter is there. We will have new fish, new listed fish showing more of theyou know, spring run are doing good in the Sacramento Valley. If we are successful we will see them entering the
Delta from the San Joaquin River. And the answer is yes, it could.
I think the next question is, so how do we deal with that. We
were working on language yesterday, and this is really the domain
of National Marine Fisheries Service, who has the regulatory tiller
here. And they were working yesterday with us trying to craft language which would describe how they might use some of their regulatory tools in the context of Delta operations. I would say that
is an open, you know, we have not reached closure on that; there
is uncertainty there. But I think it could well be one of the critical
issues to whether we reach closure or not, is just how does Congress describe those tools and their use going into the future.
Mr. RADANOVICH. Thank you. I now recognize Mr. Costa for his
first round of questions.
Mr. COSTA. Thank you very much, Mr. Chairman. As we have
discussed this morning and now into the afternoon, the concerns
that we have all raised with regards to third parties, a lot of that
focus has been with folks that are on the parts of the river that,
as you see the map, that affect the tributaries that go to the Delta.
But there are other third parties that are impacted that were not
mentioned here today, and I represent part of them. And they go
further south of Fresno, and the map doesnt go that far, unfortunately. But I am talking about those in Kern County that also are
part of this direct and indirect impacts.
Mr. Peltier, do you believe that the flows that are going to be required, the pulse flows, will impact the availability of what is referred to as 215 water that is contracted by the Kern County Water
Agency and others?
Mr. PELTIER. Yes.
Mr. COSTA. You do. Who are the other parties that could be impacted? Can you name beyond the Kern County Water Agency?
Mr. PELTIER. Well, to the extent thatand I couldnt begin to
quantify or
Mr. COSTA. No, I understand.
Mr. PELTIER.put it in a magnitude sense. But I would say in
the larger sense, the entire operation of the unit is going to be
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altered in some fashion to accomplish the settlement. And I think
the tools that the Friant Division contractors have sought in the
settlement agreement are tools to allow a positive kind of, I dont
want to use the term reoperation, but modification of the way that
the system operates.
There will be more water going down the river. There will be less
water going down canals at times. And yet we have some tools to
make sure that
Mr. COSTA. Yes, I understand. Let us quantify that. I have some
other questions I want to ask.
The amount that I have heard as far as the Kern County Water
Agency is 90,000 acre-feet that they have been able to purchase
under 215, and that they believe it could be cut back down to
40,000 acre-feet, which would be a loss of 50,000 acre-feet for them
on a regular basis. Do you believe those numbers are correct?
Mr. PELTIER. I dont have the analysis to
Mr. COSTA. Well, for the record let us submit at this point, unless
someone testifies with other information, that it is a loss of 50,000
acre-feet of water.
Mr. CANDEE. Congressman Costa, this is Hal Candee. Can I take
a stab at that question? Because I know that the issue has come
up. The question is, as compared to what?
My understanding is that all of the Friant contracts give them
a first right to 215 water. And so if there is a court order to release
water from Friant Dam, my understanding is that they would most
likely exercise that right to take that 215 water. So I guess the
question is, are you comparing what Kern County might have gotten in a windfall in
Mr. COSTA. No, I am not talking about a windfall. They believe
that they contract, they have been able to purchase up to 90,000
acre-feet of water on an average basis.
Mr. CANDEE. When there is no flow release requirement.
Mr. COSTA. Right. And they believe that that is going to be cut
back to allow them maybe 50,000 acre-feet or less.
I have other questions, and I am going to get to you, Mr. Candee,
so hold on a second, OK?
Mr. Chrisman, does the state plan, under the settlement agreement, to do any analysis to try to ensure that there are no impacts?
Mr. CHRISMAN. Absolutely. I mean, we have committed to that
up front, and again with our
Mr. COSTA. And you have set aside money for that purpose?
Mr. CHRISMAN. If we havent, we will, let me say that. I cant tell
you whether we have set aside money for that purpose yet or not.
Mr. COSTA. Will you include in that analysis whether or not
there will be any impact on the state water project?
Mr. CHRISMAN. Absolutely.
Mr. COSTA. OK. Mr. Candee, it was spoken of earlier about the
benefits of the agreement, and I agree there are numerous benefits.
And that is why we are hopeful that this restoration effort will be
implemented, and that we will be able to pass enabling legislation.
But I also want to ask you whether you believe, in the event
and it has been part of the discussion as of yesterday on thirdparty impactsas to whether or not the Delta is included when we
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are talking about fisheries, and if, in fact, the fishery count is included in the Delta area in terms of the spring run.
Do you believe that this could impact the pumps, the state
pumps, in terms of the exporters of water not just to the Central
Valley, but result in a loss of water to possibly Southern California,
which would be obviously the metropolitan district that gets up to
700,000 acre-feet of water depending upon the year from their supply as a state water contractor.
Mr. CANDEE. Several points. First of all, I think all of the parties
made clear we do not intend or anticipate material adverse impacts. Second, there will be benefits in the Delta when
Mr. COSTA. No, we have established the benefits.
Mr. CANDEE. Right.
Mr. COSTA. I am asking you the question, if spring run were included to the area of the Delta as it relates to the pumping regime,
do you believe, in fact, that that could negatively impact the ability
of exporting water south of the Delta for those who have established contracts as state water contractors?
Mr. CANDEE. And I think the answer is the National Marine
Fisheries Service and others do not know the answer to that, because they have already
Mr. COSTA. But it could.
Mr. CANDEE. Well, they have the regulatory tools to avoid that.
So for example, the consultation on that question, salmon impacts
in the Delta, is currently reopened, and they are reconsidering
what the protections are. So they have the flexibility. So I think
Mr. COSTA. They have the flexibility, but they alsowe know the
contentious nature of water debate in California. And we know the
pressures that are placed on it. And the fact is that the pumping
regime has been hotly debated. The notion of increasing the pumping capacity is opposed by you and many other folks under the
Harvey Banks approach.
So the answer to the questionI mean, you may artfully choose
to answer any way you want. But the fact of the matter is yes, this
could, if the salmon spring run are included in the Delta, could potentially impact the pumping regime on the state project.
Mr. CANDEE. Now, it is interesting. We had so many meetings
with all the third parties, including the people within the San Luis
Authority who receive exports. There was a specific ask for the
take protection, for example on the tributaries and upstream.
There was a recognitionthis was made very clear to us by some
representatives of those third partiesthat when you get into the
Delta things get more complicated.
Mr. COSTA. Correct.
Mr. CANDEE. Because the whole theory about the experimental
population.
But in terms of understanding how the existing take limits work
and what the timing will be, I dont think the studies have been
done yet to demonstrate that there is a risk there. We have, nevertheless, been working, as you know, yesterday we
Mr. COSTA. But if the studies did conclude that there is a risk,
then it could impact them.
Mr. CANDEE. Yes, the theoretical possibility that over 20 years
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Mr. RADANOVICH. The gentlemans time is up. If you want to
finish, quickly finish.
Mr. CANDEE. Anyway, I am not sure where we are going to go,
because there is theoretically, there is a potential
Mr. COSTA. No, but this is a risk we are all taking, and it is the
reason that we have to provide these predictions. And why, in my
opinion, we cannot be having any degree of ambiguity that would
create doubt in peoples minds as to these third-party impact.
Mr. RADANOVICH. The gentlemans time is up. Mr. Nunes, you go
ahead. You are recognized.
Mr. NUNES. Oh, well, thank you. Mr. Candee, I want to follow
up on, I didnt understand your answer to Mr. Costas question involving the 215 water with Kern County Water Agency. And I also
have some information about the other dialogue we were having
before.
OK, but can we clarify that first? You said that they will lose
their 215 water under this agreement?
Mr. CANDEE. No, I am not sayingagain, I dont think people
know. Part of it depends on, as you know, 215 water is sporadic,
and it is sometimes available in very large amounts. I assume Mr.
Upton would know better than any of us about how to adjust this
question.
But my understanding, we have talked about this during the settlement process, is right now the Bureau of Reclamation, nobody
has an entitlement to 215 in terms of a guarantee of when the
water is available, except that the Friant water users do have in
their contract
Mr. NUNES. But the question that Mr. Costa asked specifically on
the 50,000 acre-feet of water annually that they would lose, is that
true?
Mr. CANDEE. What I was trying to get at is it is hard to say that
they are losing 215 water under the settlement. It depends on what
you are comparing it to.
First of all, I dont think people know. But the second thing is
that if the alternative is a court order requiring more flows to be
released from the dam, and Friant has the option of taking all of
the 215 water itself, it could be that they would lose more by not
settling. That is the point I was trying
Mr. NUNES. So we are back to the point of if Congress doesnt
act, the judge will.
Mr. CANDEE. No, no. The settlement goes into effect when the
settlement is approved by the Court.
Mr. NUNES. You just said, though, if we dont
Mr. CANDEE. If we dont settle. I said if we dont settle.
Mr. NUNES. Then the judge will rule.
Mr. CANDEE. Well, I mean, nobody can predict what a court is
going to do. But I think the theory that
Mr. NUNES. You are basically saying Kern County would lose
more if the judge ruled, so you better do the settlement. That is
what you said.
Mr. CANDEE. Mr. Nunes, your constituents have spent the last
year working with NRDC and the Federal government trying to
come up with a fair package settlement to avoid litigating the
issue. Nobody knows exactly what the Court is going to do. But I
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think when Chairman Radanovich and Senator Feinstein approached us, they said try to come up with a program that works
for both sides. And we did.
In terms of the 215 waterand I have talked to the Bureau of
Reclamation about this for many, many yearsthey have always
told me if it ever turns out that we have to release water from
Friant Dam, the first thing we would do is try to avoid impacts to
the long-term contractors. So if there were a way we could use surplus flows, flood flows, or 215 flows, we, the Bureau
Mr. NUNES. I understand. But, I mean, you did make that point,
though, that if we dont do this, that the judge would rule, and
Kern County would lose more water.
Mr. CANDEE. No, no. I mean, I know that Kole Upton said that
in his opening statement.
Mr. NUNES. Can I go to another question?
Mr. CANDEE. Please.
Mr. NUNES. In regards to the salmon, to date, has anyone submitted documentation concerning the probability that the effort to
reintroduce Spring Run Salmon will succeed?
Mr. CANDEE. Yes. That was the subject of enormous amount of
expert testimony in preparation for the trial. There were depositions, there were reports on both sides. And you know, I think that
material is available; we can make it available if you dont already
have it.
By the way, I wanted to mention I do have the site for that, you
were asking about whether there was any precedent for the Federal government asking for legislation
Mr. NUNES. Yes, but let us finish this question on the fish first.
So have you estimated the number of salmon that would be returned? Would the documentation that you said has been submitted?
Mr. CANDEE. Yes, I think there is some discussion there. But in
the settlement, I think all of the parties felt that they didnt want
to get into a lot of the numbers at this point, and instead we have
created a process where the state fish agencies
Mr. NUNES. But do you have a specific number of how many fish?
I mean, will it be three fish? Five million fish?
Mr. CANDEE. The settlement is explicitly silent on that subject.
Mr. NUNES. But I mean, it is the job of the Congress to understand. I mean, you are asking us to spend $800 million, which
probably means $2 billion, to restore salmon on the river. That is
what you are basically asking us to do.
So I mean, I think it is our job and our duty to understand how
many fish are going to be returned. Do we have any sense of what
would happen if you put the water down the river, you reintroduced the salmon? How many salmon are we going to get? What
is a reasonable expectation?
You know, it has been reported younumerous newspapers have
come out now, and they have editorialized about how wonderful it
is going to be to be poaching salmon on the San Joaquin River
again. But is that a reasonable expectation?
Mr. CANDEE. The goal of the effort in the San Joaquin, like the
goal of the efforts that many water users are working on actively
with the Bureau of Reclamation and the State of California and
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Sacramento Valley, is to rebuild the Spring Run population as
much as we can. And they are having, as Jason stated earlier, they
are having some success. The numbers are up.
Mr. NUNES. Well, maybe Jason can tell us. Jason, or Mr. Peltier,
do you know how many fish are going to be restored to this river?
Is there any documentation?
Mr. PELTIER. I guess I am with Hal; I cant answer that question
at this point. There are studies and hopes and expectations. But do
we have
Mr. NUNES. But you are asking us to pre-authorize and appropriate $800 million to bring back fish that we dont know will be
back, for sure.
Mr. UPTON. Yes. And I would go further and say that between
the Federal and state governments and local interests, over the last
decade we have spent $1 billion on fishery improvements in the
Sacramento Valley. We have seen response in the populations.
But when you ask a biologist what is the population-level effect
of this $80 million fish screen, they will say I cant tell you. Even
though the fish are right there, and it is real time as opposed to
us looking ahead 20 years on the San Joaquin.
So it is a very, very difficult world in terms of tracing cause and
effect between investment and result on fish populations.
Mr. RADANOVICH. The gentlemans time has expired.
Mr. NUNES. Thank you, Mr. Peltier. Thank you, Mr. Chairman.
Mr. RADANOVICH. You bet. Mr. Cardoza.
Mr. CARDOZA. Thank you, Mr. Chairman. I want to reiterate that
I am in support of trying to do this, as we have set out to do. Because I think there are some tremendous benefits.
I think it is important, though, that the public go in, as I said
in our meeting yesterday in Senator Feinsteins office, with our
eyes wide open. And we know all the impacts and ramifications,
the positives and the negatives. And I think it is really important
that the public not get oversold on the impacts.
You know, much has been said about the potential water quality
benefits of this settlement. But we really dont know, because the
pulse flows will happen at times that dont really benefit, from my
understanding, the Delta. I mean, all water, all freshwater, you
would think, would be beneficial. But the reality is that if you send
it down certain parts of Reach 4B, we could actually end up leaching salt into the river that is currently buried a little deeper, because the water table in certain parts of Reach 4B is so shallow
that it may actually provide the wick to wick up salt, and send additional salt down the river, if the flows are not sufficient to dilute
it. And you could actually see a degradation of water quality at certain times of the year.
That is my question. Jason, Mr. Peltier, and Secretary Chrisman,
is that not your understanding as well? That we need to study this
and find out exactly what will happen before we send water down
certain stretches of the river.
Mr. CHRISMAN. From a state perspective, yes. We really havent
done any studies at all yet on what additional flows down the San
Joaquin will do to water quality, so we are just going to have to
study it to determine it.
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Mr. PELTIER. I would concur. And I think you are correct that
there are many issues. We could talk about temperature benefits
and temperature downsides. We can talk about accretion/depletion.
There are a bunch of factors.
And that is exactly why, certainly in the discussions yesterday
and the discussions for months now, we have recognized, and the
settling parties recognize the magnitude of uncertainty with that
reach, and have kind of pushed off and said until we know more,
we cant make decisions.
Mr. CANDEE. Congressman Cardoza, actually in August of 2004
the Bureau of Reclamation did a study, sort of a pilot recirculation
study, where they released Delta water down into the river, and
found that there actually was a significant improvement in salinity.
Also, everybody needs to remember there is a provision for buffer
flows. And so the flow regime that is in the hydrographs can be
augmented at different times of the year.
There are also different kinds of water quality issues. There is
a Stockton DO problem, there are obviously fishery issues that are
covered by some of the water quality hearings and orders out of the
State Water Board.
So I think it is more complex than just taking one point in the
Delta and looking at the hydrographs, and trying to match up.
Mr. CARDOZA. You are absolutely right, and I concur with that.
By the way, the dissolved oxygen questions were significantly benefitted this summer by the aerators. Dont know if that will always
happen. But the point is that we can do good things in the Delta.
Mr. PELTIER. I am not sure, I dont know the details of the recirculation study that was done by Reclamation. But I am 99 percent
sure none of that recirculation occurred in Reach 4B.
Mr. CARDOZA. Well, that was my next question, so I am glad you
point that out.
Mr. PELTIER. So what the geology is and what the salt load is,
you are exactly right, we have unknowns to discover, to find answers to.
Mr. CARDOZA. The point that I want to make is we all want to
do this. But the skepticism you are hearing from some of us is that
we want to make sure that the agreement that we, in fact, pass
from this Congress does not do what we have all stated here that
we dont want to have happen. We dont want those third-party impacts. Everyone on the panel said that.
It is our job to make sure that the legislation we craft adds another layer of protection, beyond what the settling parties have
done, to make sure that, in effect, we dont harm the environment,
because there is that potential. And let us all understand that
when we dont know everything that is going to happen, we dont
know everything that is going to happen.
And we just have to make sure that none of us are voting for
something that ends up like a Kesterson, where we intended a
drain that was going to solve a lot of problems in the Valley and
a lot of problems for the State of California; and in fact, we almost
had an ecological disaster there. So that is what I am trying to
avoid.
Mr. RADANOVICH. Thank you, Mr. Cardoza. Mr. Costa.
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Mr. COSTA. Thank you very much. Mr. Chrisman, one question
I am not sure I got a clear answer on. Is it the intent, for the
record, that any of the costs to this settlement agreement be shared
by the State Water Contractors?
Mr. CHRISMAN. You know, I cant answer that right now. Just for
the record also, I mean, we have significant dollars, as has been
pointed out by
Mr. COSTA. No, I understand the bond measure. I am supportive
of Prop 84. I am trying to do all the right things.
Mr. CHRISMAN. But I dont know the answer to that question yet.
Mr. COSTA. OK. Well, I think it is important that we get a clarification.
Mr. CHRISMAN. Sure, you will.
Mr. COSTA. Because thus far the money that I know that has
been identified for the settlement agreement from the state has
been out of the bond measure.
Mr. CHRISMAN. Yes, sir.
Mr. COSTA. And if, in fact, it is being contemplated that state
contractors have to share some of these costs, then they need to
know it.
Mr. CHRISMAN. Yes.
Mr. PELTIER. If I could answer that. I have not heard any discussion or any contemplation that the state contractors would incur
any costs.
However, there may be scenarios in the future where they derive
benefits from this restoration program and reoperation of the system, to some extent. I would say, you know, if benefits are derived,
then they should, you know, I mean they would have a call. Do
they want the benefits? And if they want benefits, then there is a
cost that goes with them at times.
Mr. COSTA. Well, that relates to me another question, because I
think there are potentially, as we have all stated, benefits, Mr.
Peltier. But will the recirculation efforts that are being contemplated under the agreement that have benefits also potentially
take water away from state contractors? I mean, how well have you
figured that part out?
Mr. PELTIER. That is not, I would say, well defined. However, I
cant imagine a
Mr. COSTA. It is not the intent.
Mr. PELTIER. Yes. I cant imagine going into the development of
a recirculation plan where one of the first principles is we are not
going to jump ahead of anybodys existing need or use. And the
principle would be we are looking for where there is surplus capacity to use.
Mr. COSTA. Let me, final question to you, Mr. Peltier, since you
probably have a larger breadth of knowledge of western states efforts and various agreements, whether they be Indian settlements
or other efforts that have taken place on the Columbia. Certainly
you and I have worked together over the years; I know you are
very well versed in terms of California water challenges that we
have worked on.
The parties to the agreement have a high and a low number in
terms of the costs of the settlement: $250 million on the low end
and $800 million at the high end. And obviously the studies will
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make it clear. And of course, whether or not we are spending these
monies today or whether we are talking about spending these monies, vis-a-vis inflation, for 2015 or 2020 makes a big difference, I
think.
Having said that, if I gave you $800 million today and said I
want to restore fisheries in western states, Mr. Peltier, tell me
where you could take that $800 million and get the best bang for
your buck in restoration of salmon fisheries? Off the top of your
head. Whether it be in California or on the Columbia. Is this the
best place that we have a chance to restore Chinook salmon?
Mr. PELTIER. I dont have a snappy answer to that question.
Mr. COSTA. It didnt have to be a snappy answer.
[Laughter.]
Mr. PELTIER. It could be a thoughtful answer?
Mr. COSTA. It could be a thoughtful answer.
[Laughter.]
Mr. PELTIER. Oh. You know, there is a lot of money being spent
in a lot of places, and the Columbia is a great example. There is
a lot of money being spent.
Mr. COSTA. Over billions of dollars.
Mr. PELTIER. Yes. And we have spent a lot in California. And my
earlier comment about
Mr. COSTA. Let us keep it local. The Red Bluff diversion effort
that has been successful. What could $800 million do there?
Mr. PELTIER. Eliminate any fraction of a barrier that remains in
undercurrent operations.
Mr. COSTA. And how much more fish would be produced as a result of that?
Mr. PELTIER. I cant answer that. I dont know the
Mr. COSTA. A lot more?
Mr. PELTIER. No, I cant answer that. Because I dont know the
increment of
Mr. COSTA. I think it is an interesting question to ask. Because
what we are talking about here I think, and the point I am trying
to make, is the restoration effort and the agreement is more than
just about restoring salmon, which is, everyone acknowledging the
goal, but no one knows with certainty that we will be able to do
that.
Mr. PELTIER. Right.
Mr. COSTA. And if simply we are talking about restoring native
salmon to California or elsewhere, we know we could put money in
other areas with more certainty in terms of results.
Mr. PELTIER. And I think it is really important to keep in mind
that this is about a lot more than salmon. It is about repairing a
corridor, it is about recreation, it is about communities looking out
their back door and seeing a flowing river. It is about migratory
songbirds, it is about a lot of things.
Mr. COSTA. Thank you.
Mr. RADANOVICH. Thank you, Mr. Costa. I am going to ask one
question, which I hope will be the last question of this panel, because it is two and a half hours into this hearing and we do have
a second panel to hear from.
But I did want to ask this question of Mr. Upton, Mr. Peltier,
and Mr. Candee. Over the past 24 hours or so you have been
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working with third parties and others to address concerns relating
to Reach 4B and also some remaining ESA issues.
My understanding is that you have reached agreement regarding
Reach 4B, and that you are still working on some ESA-related
issues.
What I want to hear from each of the three of you is that you
are committed to resolving these matters very shortly, hopefully
within the next couple days.
Mr. UPTON. Yes, Friant has definitely committed to that, Congressman. And let me say that our view in Friant is we are not
coming to you and demanding that you approve this settlement or
anything like that. What we are doing is we are looking for leadership. We are saying this is our settlement; you have the broader
perspective from society in general, so you have to look at it from
that perspective. And help us to make this settlement so that it addresses all of societys concerns so that we can move forward.
Mr. RADANOVICH. Thank you.
Mr. CANDEE. Yes, Mr. Chairman. We have invested a lot of time
already, and as you indicated, I think we have made great progress
on 4B. The ESA issues are obviously more complicated and more
difficult, and there is a broader array of interest in the U.S. Senate, for example in California.
We are committed to continue that process. I am not sure Senator Feinstein has given us an option not to.
Mr. RADANOVICH. Good.
Mr. CANDEE. But you know, obviously all sides are going to need
to realize we are not going to all get everything we want. So it is
a complicated one.
Mr. RADANOVICH. Very good. Mr. Peltier.
Mr. PELTIER. Yes, we are committed to work, and are optimistic
that the tools exist to accomplish the assurances that folks are
looking for. And we are confident that, you know, your part is not
so much those tools, but creating the framework for how those tools
will be deployed.
And I think the National Marine Fisheries Service is fully engaged there. They have the regulatory lead, and we are very appreciative of their engagement.
Mr. RADANOVICH. All right, thank you. Is there any other questions of this panel?
Mr. CARDOZA. Mr. Chairman, I have one follow-up question.
Mr. RADANOVICH. We need to wrap up, guys. So I will recognize
you, Mr. Nunes, and then Mr. Cardoza.
Mr. NUNES. Thank you, Mr. Chairman. Mr. Candee, I know that
you cant wait to speak, because you have found a precedent. And
now I have done my homework, too, and I have found three precedents. So I am not going to tell you which ones I found, but I want
to know if your precedent is one of the three that I have.
Mr. CANDEE. The question is whether we asked the same people.
No, I was enjoying the irony that NRDC did not ask for legislation
as part of the settlement, and it was really the Federal government
who felt they needed to come to you for legislation.
So I did ask and check in with some folks in the Federal government. And one of the most recent examples is the Torres-Martinez
settlement agreement where
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Mr. NUNES. I knew you were going to say that one.
Mr. CANDEE. I figured you had already done your homework. I
figured you could give me the cite.
Mr. NUNES. And let me tell you that there is a difference between that one, because, you know, it is on Native American lands,
dealing with a sovereign nation, so to speak, which is much different than the San Joaquin River and its importance to the State
of California and the country as a whole. I mean, I respect
Mr. CANDEE. I understand the difference, but I am not sure it
is so material, so relevant to the question you have asked, which
is does the U.S. Government ever enter into settlements where
they feel they need Congressional action to provide the authority,
and include that as part of the settlement agreement. My understanding is that is exactly what happened in this Coachella ValleyImperial negotiation, where they felt they needed that authority,
and they actually drafted the legislation, and then it was passed.
It is part of Public Law 106-568.
So Congress not only has been presented with that situation before, but has approved that situation before. So I know
Mr. NUNES. It is pretty rare. It is pretty rare, Mr. Candee. And
that was a very, very different from this. And that is not to say
I am opposed to enacting legislation; I am very supportive of enacting legislation as long as it, you know, keeps water in my district
whole, as long as it restores salmon to the river, as long as it repairs parts of the river channel that need to be repaired, and to
make sure that there are no third-party impacts anywhere. I am
very supportive of, and I hope that we can come to a resolution on
this. And I think this committee has a responsibility to do that.
And the Congress, since the Congress was the one that made a
decision to dry the river, they should be the ones to rewet the river
under the terms of the people by elected representatives.
Which, I have one more question on that.
Mr. RADANOVICH. Quickly.
Mr. NUNES. And the Technical Advisory Board. Why was NRDC
provided a spot on this Technical Advisory Board? Because didnt
you bring a lawsuit on behalf of the people?
Mr. CANDEE. There are a lot of different seats. The State of California has two seats, the Friant and NRDC parties will jointly select independent people to have some of the seats.
But really, in addition to all of the other public participation and
all of the other committees that I am sure the Federal and state
government will be setting up, but I guess here is my problem with
this. We have the Department of Fish and Game, we have Fish and
Game, we have the Bureau of Reclamation, we have the entire, you
know, huge government entities that are out there within the government, numerous entities. Why are we creating a new entity,
Technical Advisory Board? And why would you have a seat at that
table?
Mr. CANDEE. I think it is very straightforward, actually. One of
the things that we were presented with in people asking us to sit
down at the negotiating table to try to come up with a settlement
was go in more slowly. Let us phase this in. Let us not just start
turning on the tap. Let us do all this construction work, all this
improvement work, and then phase in over time.
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And we said look, we have a very strong interest in how that
happens. And Friant said the same thing. Friant said we have a
very strong interest. And even though we both love the Interior Department very much, we would like to have a role and be able to
participate. We have to safeguard our own investment of time and
effort in crafting the settlement to make sure it is implemented in
a way that we find, you know, successful.
So that is really a way, and it is unique to a settlement, a grievance situation, I think.
Mr. NUNES. So unique that it is borderline unconstitutional. I
mean, this is really an area where, you know, that I have a real
problem with, in terms of Friantand I am not just saying this to
NRDC. But NRDC and Friant playing government and playing how
they are going to create legislation and come up with legislation
Mr. PELTIER. Could I comment?
Mr. NUNES. Yes, Mr. Peltier.
Mr. PELTIER. We do not anticipate any of the Federal agencies,
and I am sure the state would echo this, ceding any of our authority or responsibility.
Mr. NUNES. But dont you already have that responsibility to do
all the things that are in this settlement? Within your department
and California?
Mr. PELTIER. No, we dont have all the authority to carry out
Mr. NUNES. I mean, if we enacted legislation to do this, why
would you need this Technical Advisory Board?
Mr. PELTIER. Well, it will be a part of the bigger public involvement process. We would imagine the establishment of a Federal advisory committee, a FAC committee, patterned somewhat after the
Trinity River Restoration, where we would have the broad suite of
agencies and publics involved.
The TAC, as far as the NRDC and Friant, would be in some
ways their means of engaging in the broader public process. So
there will be no, the restoration administrator or the FAC would
not have any authority vested in them from any of the existing
agencies.
Mr. NUNES. Thank you, Mr. Peltier. Thank you, Mr. Chairman.
My point on this is not that I am against this Technical Advisory
Board. I just wanted to know why it is part of the settlement. That
is the part, I think the important part of this hearing is making
sure that we flush out all these issues, so that we have a good understanding as we move forward on legislation of what we are
doing, and why.
Mr. RADANOVICH. Thank you, Mr. Nunes. Mr. Cardoza, you have
one last question?
Mr. CARDOZA. Actually I have two now that we have just engaged in this other topic.
I want to say that I support the Technical Advisory Committee.
I think it is an important part of this process.
But, Mr. Peltier, dont you think it is also important that the
third parties have a seat at that Technical Advisory Committee,
since they are so potentially impacted by this process? Mr. Costa
and I are asking this question jointly, by the way.
Mr. PELTIER. That is not what is envisioned in the settlement
agreement. What is envisioned in the settlement agreement,
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however, above and beyond the TAC, the TAC being kind of NRDC
and Friants means of organizing and inputting into this bigger
Federal/state combine which would havethat is where the bigger
scope of public involvement would occur. And it in no way diminishes that, in no way substitutes for that.
We have a long history of having Federal advisory committees be
the locus of activity, whether it is on the Colorado River or the
Trinity River or elsewhere.
Mr. CARDOZA. I understand that, Mr. Peltier. And that is my
point, that if you are going to have this, and it is going to have impacts, that is going to be the locus of communication, then we
should have all the locusts in the room. And that is why I am so
committed to having our third-party folks as part of that committee, too. And so that is something that I will pursue with the
two Chairs as we move forward with the legislation.
My question. When I asked my first question today with regard
to ESA, I got a lot of different nuances to that question. And it was
clear to me that everyone committed to ESA protection for the tributaries. But I am also concerned about the ESA protection for the
Delta, because we have the Tracy Pumps in the Delta, we have a
chondrocostal water district in the Delta. We have a Santa Clara
water district in the Delta. We have a number of folks. And I understand the challenge, frankly. Because you have another endangered species to the north that you are trying to protect; they are
going to intermingle.
But we have to come to some kind of resolution. And I want everyone to state that they are committed to trying to figure out a
resolution, because the problem doesnt stop at the last tributary.
And that is a real challenge for us.
So, Mr. Upton, I will let you start with that.
Mr. UPTON. Well, we are committed to that, Congressman. And
as I pointed out
Mr. CARDOZA. The Delta, as well.
Mr. UPTON. I am just a simple farmer, so I cant tell you how
you write the language to address that. But hopefully there are
some people smart enough to do that, because we are committed
to doing it.
Mr. CARDOZA. Thank you.
Mr. CANDEE. Again, as I indicated before, I think the Delta is
kind of a unique situation. There already is take protection for listed species in the Delta, so the situation on the tribs is unique because there is no Spring Run situation there. So that is why I
think we have all been tackling that first.
But you know, there already are protections, there already are
biological opinions in place, whereas on the reintroduction of spring
run in the tribs, we are looking at a future biological opinion and
a future incidental take statement. In the case of the Delta, we already have existing take protections that are in biological opinions,
and they respond to the numbers, et cetera.
So I think it is complicated. But in terms of committing to working with you to see if we can find a way to meet everybodys interests, obviously we would like to do that, and that is what, as you
know, we have already been working on.
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Mr. CARDOZA. We have, but I just, I needed to get that in the
record. Jason, Secretary.
Mr. PELTIER. Yes. And I would say in addition we want to find
something, a way to address the concerns, via process and use of
existing tools on the river and in the Delta, that has this legislation
not coming into the arena of being a National Environmental Species Act lightning rod, where there is some clear Federal exemption
or something that would cause people to go overboard, or to go
Mr. CARDOZA. We know about lightning rods in this committee.
We have experienced that. Richard?
[Laughter.]
Mr. PELTIER. My concern is even if we find something that we,
in the confidence of a meeting room and with the experts, feel does
not prejudice the process, and yet provides the comfort, there are
a bunch of religious issues associated with the Delta that go beyond rational discussion. And I, frankly, fear very much that our
ability, we might be able to find comfort in a room, but outside the
room the answer is going to be no, no matter what. And the response is going to be no, that is unacceptable, we cant go there.
Mr. CARDOZA. That is our challenge. That is our challenge.
Mr. PELTIER. Yes, that is my concern, too.
Mr. RADANOVICH. Thank you, Mr. Cardoza. With that, I want to
thank the panel for being here. Your testimony has been very valuable. And you may be dismissed now. We will call up our second
panel.
I would like to mention that Ranking Member Napolitano did
have four questions that we are going to submit for the record, and
leave time available for written responses to, as well.
[Recess.]
Mr. RADANOVICH. If our next panel would be seated. The second
panel consists of Mr. Tom Birmingham, the General Manager/General Counsel of the Westlands Water District in Fresno, California;
Mr. Allen Short, the General Manager of Modesto Irrigation District and representing the San Joaquin Tributaries Association in
Modesto, California; Mr. Ken Robbins, General Counsel of the
Merced Irrigation District in Merced, California; Mr. Steve
Chedester, the Executive Director of the San Joaquin River Exchange Contractors Water Authority in Los Banos, California; and
Ms. Lynn Skinner, the owner of Wolfsen Farms in Los Banos, California.
Ladies and gentlemen, welcome to the Subcommittee. We will
hear from each of you, with five minutes worth of testimony, and
then open up the dais for questions if you wish. And again, thank
you for being here.
I will start with Mr. Birmingham. Tom, if you want to start, we
will just work right on down the line and then open it up for questions. Welcome.
STATEMENT OF TOM BIRMINGHAM, GENERAL MANAGER/
GENERAL
COUNSEL,
WESTLANDS
WATER
DISTRICT,
FRESNO, CALIFORNIA
Mr. BIRMINGHAM. First I want to thank you for the opportunity

to appear today to testify about what is critically important, an
issue critically important to the State of California.
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Before I begin, I need to ask leave of the Committee. Apparently
there was some problem with the physical delivery of copies of my
testimony yesterday. An electronic copy was received within the
time prescribed by the Committees rules, but copies were not delivered. And so I would ask that my testimony be received into the
record of the hearing.
Mr. RADANOVICH. With no objection, so ordered.
Mr. BIRMINGHAM. Thank you very much, Mr. Chairman.
I would like to begin my testimony by expressing, in unambiguous terms, as Members of the Committee have, Westlands Water
District support for the implementation of this settlement agreement.
Westlands, more than any other agency in the Western United
States, understands the chaos and economic disruption that occurs
when hundreds of thousands of acre-feet of water are involuntarily
taken away from farmers who have historically relied on that
water.
The Friant water users and the Bureau of Reclamation have
done a risk assessment. And they have concluded that this settlement is the best, the best that they can make of what potentially
could be a very bad situation. And so we absolutely support their
decision to pursue this settlement.
Having said that, as the Members of the Committee have outlined here today, in their present form, the settlement agreement
and the San Joaquin River Restoration Settlement Act create risks
that burdens associated with the implementation of the settlement
agreement may be shifted to other parties. And I would just like
to briefly highlight four.
One is the use of CVP water. The settlement agreement and the
Restoration Act essentially establish a cap on the amount of water
that can be taken from the Friant Division of the Central Valley
Project for purposes of restoring this fishery. But there isnt a cap
on the total amount of CVP water that can be taken. And this can
be easily fixed by an amendment that says the only Central Valley
Project water that will be used, absent acquisition from a voluntary
seller, to implement the settlement will be the water released from
Friant under the terms of the settlement itself.
A second is the recirculation, the recapture of water released
from Friant to minimize water supply impacts on the Friant Division. As each of you know, the capacity to pump water in the Delta
is limited. And it is currently dedicated, in virtually all circumstances, to existing uses. And so we think that the legislation
needs to express unambiguously that the use of the pumping capacity to recirculate water will be subordinate to the existing demands
and uses the pumping plants.
Third is ESA protection. And the Committee has talked an awful
lot about that with the first panel. But I just have to express my
complete disbelief of comments made by Mr. Candee with respect
to that issue.
Mr. Cardoza and Mr. Costa and Mr. Nunes each asked him specifically, do you support ESA protection in the Delta. And the answer that he gave you to that question is the most disingenuous
answer I have ever heard.
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He said to Mr. Cardoza, well, there are already take limits, take
protection under biological opinions that exist for these salmon in
the Delta. Well, what he failed to mention is that his organization
has filed a lawsuit to challenge those very protections in the biological opinions.
What the Members of this committee have said is critically important. If we are going to be able to implement the settlement
without endless litigation, this legislation has to be unambiguous
that there will be no third-party impacts, including ESA protections for the Delta.
And then finally, I would like to comment on the potential risks
associated for Central Valley Project contractors in connection with
payment of capital. We want to make sure that the fact that the
Friant capital payments are being devoted to this project, which we
supportwhich we supportdoesnt result in other CVP contractors having to pick up those same capital payments under laws
pertaining to the repayment of capital.
With that, I will conclude. And I would be happy to respond to
any questions that you may have. But again, I want to express
Westlands Water District support for the efforts of the Friant Division and the Bureau of Reclamation to minimize the amount of
water that they otherwise would lose potentially under an adverse
judicial decision.
[The prepared statement of Mr. Birmingham follows:]
Statement of Thomas Birmingham, General Manager/General Counsel,
Westlands Water District
Mr. Chairman and members of the Subcommittee, my name is Thomas Birmingham, and I am General Manager/General Counsel of the Westlands Water District. I appreciate the opportunity to testify today on The San Joaquin River Restoration Settlement Act.
At the outset, I would like to express our appreciation for your decision to conduct
this oversight hearing and take testimony from agencies that are not party to Natural Resources Defense Council v. Rodgers, the litigation that would be settled
through enactment of the San Joaquin River Restoration Act. Resolution of this
longstanding litigation would be historic, and the settlement would bring water supply certainty to a portion of the San Joaquin Valley that is of critical importance
to the agricultural economy of the State of California. However, to avoid creating
uncertainty and risk for other portions of the Valley, it is critical that the settlement
be implemented in a manner that does not shift to other agencies unwarranted burdens associated with the San Joaquin River restoration program. I am confident
that your decision to hear from third parties will facilitate the development of
amendments to the San Joaquin River Restoration Act that will avoid third party
impacts while not frustrating the agreement of the settling parties.
1. Westlands Water District Experience with Water Shortages
Westlands Water District (Westlands) is a public agency of the State of California,
which serves irrigation water to portions of the westside of the San Joaquin Valley
in Fresno and Kings counties. Westlands is comprised of more than 605,000 acres,
and the demand for irrigation water is 1.4 million acre-feet per year. Historically,
that demand has been satisfied through the use of groundwater, water made available to the District from the Central Valley Project under contracts with the United
States for the delivery of more than 1.15 million acre-feet, and annual transfers of
water from other agencies.
Westlands is one of the most fertile, productive and diversified farming regions
in the nation. Rich soils, a good climate, and innovative farm management have
helped make the area served by Westlands on of the most productive farming areas
in the San Joaquin Valley and the nation. Farmers in Westlands produce over 60
different high-value, commercial crops that are sold both domestically and internationally in the fresh, canned, frozen and dry food markets. However, like every
other region of the arid west, the ability of Westlands farmers to produce these
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crops and generate the associated economic activity depends on the availability of
an adequate, reliable source of water.
Westlands experience with the implementation of the Central Valley Project Improvement Act (CVPIA), Pub. Law 102-575, is illustrative of what can happen to an
agricultural region like the area served by the Friant Division of the Central Valley
Project when significant quantities of water are involuntarily reallocated from irrigation use to fish and wildlife use. Water deliveries to Westlands from the Project
began in 1967, and up until 1991, those deliveries were highly reliable and adequate
to meet the demand in Westlands for irrigation water. Indeed, from 1967 to 1991,
Project water was the principal source of water for irrigation within Westlands, and
the only reduction in Project water supplies resulted from the extraordinary drought
conditions in 1977, the driest year on record in California. However, enactment of
CVPIA made Westlands Project water supply both unreliable and inadequate. The
CVPIA was implemented by the Department of the Interior in a manner dedicated
more than 1,200,000 acre-feet of Project water for the restoration and enhancement
of fish and wildlife. Much of this water was taken away from farms, ranches and
business that had relied on it for decades. Contrary to the assumption at the time
of CVPIAs enactment, that it would reduce water supplies by approximately 10%
Project wide, virtually all of the water supply reductions resulting from implementation of CVPIA were imposed on south-of-Delta Central Valley Project agricultural
water service contractors. The reliability of water supplies for south-of-Delta water
service contractors went from approximately 92% in 1991 to approximately 50% in
2000, when the CalFED Record of Decision was adopted.
In response to chronic water supply shortages caused by CVPIA, Westlands farmers have had to rely more on the use of groundwater as a source of irrigation water.
In 2004, farmers in Westlands pumped more than 210,000 acre-feet of groundwater,
which is significantly more than the USGS estimate of the safe yield of the groundwater basin (135,000 acre-feet). To the extent which farmers have to rely on groundwater is contrary to sound principals of conjunctive use, which dictate that in wet
or above normal years of precipitation, groundwater use should be reduced to allow
the groundwater table to recover. In addition, Westlands has acquired and fallowed
more than 89,000 acres of land to help balance the demand for water with the Districts available supply. Westlands has also acquired all of the lands in Broadview
Water District and the water service contracts of Widren Water District, Centinella
Water District, Mercy Springs Water District, and Ora Loma Water District. Lands
in these other districts that were previously irrigated with Project water have been
retired from irrigated agricultural production. In the San Joaquin Valley land
fallowing results in third party impacts, which disproportionately affect the poor
and minorities.
It is easy for westside farmers, who have suffered the turmoil and increased costs
resulting from unreliable, inadequate water supplies, to understand the Friant
water users keen interest in resolving a conflict that has the potential of taking
more than a-half-a-million acre-feet from farmers for fishery restoration. Although
Westlands has not prepared a detailed analysis of potential impacts, it is safe to
conclude that a judicial decision adverse to the Friant water users would devastate
the agricultural economy of the eastside of the San Joaquin Valley, and Westlands
supports the Friant water users efforts to minimize through the a settlement potential water supply losses resulting from a San Joaquin River restoration program.
Need to Avoid Third-Party Impacts
The Settlement Agreement among the NRDC, other environmental plaintiffs, the
United States, and the Friant water users states that the parties neither intend nor
believe that implementation of the Settlement Agreement will have a material adverse effect on any third parties. Given the nature of the claims that the settling
parties seek to resolve through the Settlement Agreement any other intent would
be unreasonable. However, in their present form the Settlement Agreement and the
San Joaquin River Restoration Settlement Act could be interpreted or implemented
in ways that could have significant adverse effects on agencies that were not parties
to the litigation or involved in development of the restoration program. For instance,
without close coordination, the restoration program established by the Settlement
Agreement could frustrate efforts undertaken by other agencies to restore or enhance the fall run Chinook salmon fishery on tributaries of the San Joaquin River.
In addition, if as contemplated by the Settlement Agreement the spring run Chinook
salmon are reintroduced into the San Joaquin River, the take prohibition of the Endangered Species Act could dramatically reduce the water supply or hydroelectric
generating capability of agencies that were neither party to the litigation nor involved the development of restoration program. To avoid these unintended consequences Westlands suggests that the San Joaquin River Restoration Settlement
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Act be amended to express an unambiguous congressional intent that third parties
not suffer adverse effects.
I am confident that other witnesses will focus their testimony on potential effects
that could be suffered by the agencies they represent. Therefore, my testimony will
focus on potential impacts on south-of-Delta long-term contractors that currently receive water from the Delta Division of the Central Valley Project, including the San
Luis Unit.
Use of Central Valley Project Water for Restoration of the Spring and Fall
Run
The Settlement Agreement establishes a Restoration Goal of restoring and
maintaining in good condition fish 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 salmon fisheries. Flow criteria established by the Settlement
Agreement limit for a period of years the quantity of water that can be released
from Friant Dam for the restoration and maintenance of fish below the Dam, but
there is no comparable limitation on the use of other Central Valley Project water
or facilities to accomplish the Restoration Goal. Although the Settlement Agreement
provides that the Secretary of the Interior shall comply with Endangered Species
Act in connection with his operation of the Friant Division of the Central Valley
Project, the Settlement Agreement limits the quantity of water that can be involuntarily taken from Friant Division long-term contractors to implement the Act for the
protection of salmon, or other fish, below Friant Dam. There is no comparable protection for other Central Valley Project long-term contractors.
Stated succinctly, the Settlement Agreement and the San Joaquin River Restoration Settlement Act limit the obligation of the Secretary to operate the Friant Division for the protection of fish under the Endangered Species Act, but the Secretarys
underlying obligation to operate the Central Valley Project to avoid take and promote recovery of listed species that will be reintroduced to the main stem of the San
Joaquin River between Friant Dam and the confluence with the Merced River is unaffected. For this reason it is conceivable that the Secretary could be required to
use water from other Central Valley Project facilities to accomplish the Restoration
Goal established by the Settlement Agreement. As an example, if it is determined
that the flow provided by releases from Friant Dam is insufficient to support outmigrating spring run salmon and the insufficient flow would cause jeopardy for the
species, the Endangered Species Act and the San Joaquin River Restoration Settlement Act, when read together, would obligate the Secretary to look to other sources
of Central Valley Project water to provide additional flow. It is conceivable that in
order to provide such additional flow, the Secretary of Commerce though a biological
opinion issued for the operation of the Central Valley Project could impose as a reasonable and prudent alternative the release of water from San Luis Reservoir into
the Delta-Mendota Canal for subsequent release into the San Joaquin River.
In recent discussions with the settling parties, they have stated unequivocally
that such a scenario was never envisioned and it not their intent to impose on the
Secretary of the Interior an obligation to take water from other Central Valley
Project long-term contractors in order to achieve the Settlement Agreements Restoration Goal. Therefore, to avoid this potential, unintended effect Westlands suggests that the San Joaquin River Restoration Settlement Act be amended to provide
that the only Central Valley Project water that the Secretary is authorized to use
to achieve the Restoration Goal is water released pursuant to the Settlement Agreement from Friant Dam. Such an amendment would do no violence to the settling
parties expectations and would protect south-of-Delta Central Valley Project water
service contractors, who have already lost more than 650,000 acre-feet to fish and
wildlife uses, from suffering additional water supply shortages.
Another potential reduction in water supplies of agencies that receive water from
the Delta export facilities of the Central Valley Project or the State Water Project
could result from pumping limitations imposed to prevent take of the reintroduced
spring run salmon. There are already in place numerous restrictions on pumping
at the Tracy Pumping Plant and the Harvey O. Banks Pumping Plant imposed to
protect or enhance other anadromous and pelagic fish species. However, if out-migrating spring run salmon reintroduced pursuant to the Settlement Agreement are
in the vicinity of these pumps at times their operations are not restricted, it is likely
that additional pumping restrictions will be imposed. As a consequence, the water
supplies for agencies that receive water from the Delta export facilities would be reduced. To avoid this unintended effect, the San Joaquin River Restoration Settlement Act should be amended to direct the Secretary of Commerce to exercise his
existing authority to designate as an experimental population pursuant to Article
10(j) of the Endangered Species Act the reintroduced spring run Chinook salmon.
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Such a designation would protect the Central Valley Project and the State Water
Project from water supply losses that otherwise would occur to prevent the incidental take of the species.
Recirculation or Recapture of Water
Provisions of both the Settlement Agreement and the San Joaquin River Restoration Settlement Act direct the Secretary to develop and implement a plan or program of recirculation, recapture, reuse, exchange or transfer of water released for
restoration flows, for the purpose of reducing or avoiding impacts to water deliveries
to the Friant long-term contractors. It has been reported in the press that Peter
Vorster, Ph.D., a hydrologist for the environmental plaintiffs has calculated that approximately 100,000 acre-feet of water released from Friant Dam pursuant to the
Settlement Agreement could be recaptured in the Delta for export back to the Friant
Division. If these reports are accurate, Dr. Vorsters conclusion is unrealistic.
Presently, the capacity of the Tracy Pumping Plant and the permitted capacity
of the Banks Pumping Plant are fully dedicated to meeting contractual commitments to agencies outside of the Friant Division. Indeed, because of existing restrictions imposed at these pumping plants to protect or enhance anadromous and pelagic fish, except in extremely wet hydrologic conditions, neither the Secretary nor
the California Department of Water Resources can meet water supply commitments
to their respective contractors. If a program to recapture or recirculate restoration
flows released from Friant Dam were to displace existing uses of the Tracy Pumping
Plant or the Banks Pumping Plant, the water supplies of other agencies would undoubtedly be reduced and significant conflict would ensue.
I am informed by representatives of the Friant water users that it is not their
intent to displace existing uses of either the Tracy Pumping Plant or the Banks
Pumping Plant. Instead, it is their expectation to use excess capacity at these facilities when it is available. To avoid any future conflict concerning this issue
Westlands proposes that the San Joaquin River Restoration Settlement Act be
amended to provide that the Secretarys duty to implement a recapture or recirculation program shall be subordinate to the Secretarys use of the Tracy Pumping Plant
to make Project water, other than restoration flows released from Friant Dam, and
water acquired through transfers available to existing south-of-Delta Central Valley
Project contractors. Moreover, because the Agreement of November 24, 1986, Between the United States of America and the Department of Water Resources of the
State of California for the coordinated operation of the Central Valley Project and
the State Water Project, authorized by Pub. Law 909-546, provides, inter alia, for
the coordinated operations of the Tracy the Banks Pumping Plant, the Secretarys
duty to implement a recapture or recirculation program should be subordinate to his
performance of that agreement and any agreement to resolve conflicts arising from
the coordinated operations agreement.
Conclusion
Again, I want to express Westlands support for the Friant water users effort to
minimize the water supply losses that could result from an adverse ruling in the
judicial proceedings concerning the Secretarys obligation to release water from
Friant Dam to restore and maintain in good condition fish that exist below the Dam.
If the settling parties are sincere in their belief that implementation of the Settlement Agreement will not have a material adverse effect on any third parties, I am
confident that we will be able to reach agreement on amendments to the San
Joaquin River Restoration Settlement Act to ensure avoidance of such effects on
south-of-Delta Central Project long-term contractors and other potentially affected
agencies. I would welcome any questions from members of the Subcommittee.
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Mr. RADANOVICH. Thank you, Mr. Birmingham. Next is Mr. Allen

Short, General Manager of the Modesto Irrigation District, and also
representing the San Joaquin Tributaries.
Mr. Short, welcome to the Subcommittee.
STATEMENT OF ALLEN SHORT, GENERAL MANAGER,
MODESTO IRRIGATION DISTRICT AND REPRESENTING SAN
JOAQUIN
TRIBUTARIES
ASSOCIATION,
MODESTO,
CALIFORNIA
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Mr. SHORT. Thank you, Mr. Chairman, and thank the Committee
for holding this hearing. And I appreciate the opportunity to come
before you.
I would also like to thank the Committee for their recognition of
third-party impacts to those that are on this panel and those who
are not on this panel. That is a critical component of this agreement.
As the Chairman said, I am Allen Short, the General Manager
of the Modesto Irrigation District. I am also the Coordinator of the
San Joaquin Tributaries Association. That is a group of irrigation
districts on the east side of the Valley, that consists of Modesto,
Turlock, Oakdale, South San Joaquin, and Merced Irrigation
76
Districts. We each own or operate huge reservoirs on the east side,
containing in storage well over three million acre-feet. We also irrigate more than 3,000 acres through, collectively, our area. We also,
some of us are moving into the domestic water supply as a result
of the conversion of ag land to urbanization.
Our focus today is ESA and that third-party impact. I want you
to recognize that that is a concern to all of those that are on the
tributary. Mr. Robbins will speak specifically to what we are proposing in terms of language to assist in the legislation.
But I also want to take another issue, which is an issue that is
very important to all of us who have hydro facilities on those tributaries, of which we all do. In taking the settling parties at their
word that there would be no third-party impacts, most of us, if not
all of us, will be having our FERC licenses renewed over the next
several years.
Two of the agencies have had their license renewed and have reopened. Modesto and Turlock are slated to have their license renewed in 2016, 2017, and Merced, 2014. So from that standpoint,
we want to ensure that we get protection measures contained within ESA and the Federal Power Act to allow this species to move
forward and to be reintroduced into the San Joaquin.
Let me say as strongly as my friend, Mr. Birmingham, has said,
the San Joaquin Tributaries Association does support the settlement agreement, provided that the third-party impacts, ESA-specific and the FERC-issue-specific, are resolved in a mutual agreeable manner. That there will be no impacts to our entities.
With that, Mr. Chairman, you like to conduct a tight ship. I
would again like to thank you for the opportunity to come before
you. And I delegate any time I have left, I will market it to my
friend, Mr. Robbins, to take the lead.
Thank you.
[The prepared statement of Mr. Short follows:]
Statement of Allen Short, Coordinator,
San Joaquin Tributaries Association
Good morning Chairman Radanovich and fellow members of the Subcommittee.
My name is Allen Short. I am the General Manager of the Modesto Irrigation District. I appear today in front of you as the Coordinator of the San Joaquin Tributaries Association.
The San Joaquin Tributaries Association is comprised of five irrigation districts
located on the eastside of the San Joaquin Valley which divert and use water from
the Merced, Tuolumne and Stanislaus Rivers. The SJTAs members include the
South San Joaquin Irrigation District and Oakdale Irrigation District, which are
senior water right holders and producers of power on the Stanislaus River; the Modesto Irrigation District and Turlock Irrigation District, which are senior water
right holders and producers of power on the Tuolumne River; and the Merced Irrigation District, which is a senior water right holder and producer of power on the
Merced River. Collectively, the SJTAs members comprise over 300,000 acres of agriculture, annually produce over one-thousand megawatts of electricity, annually divert over a million acre feet of water and have large storage facilities that store millions of acre feet of water.
The SJTA is a supporter of the settlement. We believe it is better to look for solutions, rather than relying on courts to issue decisions.
Our support for the settlement is premised, however, on the provisions of Paragraph 7 of the settlement agreement, which provides in part:
The parties neither intend nor believe that the implementation of this settlement will have a material adverse effect on any third parties or other
streams or rivers tributary to the San Joaquin River.
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In order to make that intention come to fruition in a clear and unambiguous fashion we have offered language for legislation. Mr. Ken Robbins will address the
issues related to the reintroduction of Spring Run Chinook Salmon. My testimony
will focus on ensuring that adverse impacts will not occur to the SJTAs members
as a result of the settlement.
In the near future, Merced Irrigation District will begin a Federal Energy Regulatory Commission re-licensing process for its Merced River Project, whose current
license expires in 2014. Shortly thereafter, Modesto Irrigation District and Turlock
Irrigation District will begin their FERC re-licensing process for the Don Pedro
Project, the present license for which expires in 2016. Oakdale Irrigation District
and South San Joaquin Irrigation District have finished their re-licensing process,
but their licenses have a re-opener provision for threatened or endangered species.
In the Federal Energy Regulatory Commissions re-licensing process, the National
Marine Fisheries Service has mandatory conditioning authority. If Spring Run Chinook Salmon are re-introduced into the upper San Joaquin River in 2012 then the
National Marine Fisheries Service will have the authority to condition the licenses
of the Merced, Modesto and Turlock Irrigation Districts with conditions for the protection of Spring Run Salmon as part of the re-licensing process. Moreover, the licenses already issued to the Oakdale and South San Joaquin Irrigation Districts
could be re-opened to consider additional conditions for the purpose of protecting or
enhancing the re-introduced Spring Run Chinook Salmon.
It is imperative to the SJTA that the ESA protections afforded the Districts at
the beginning of this settlement process, namely those under Sections 10(j) and 4(d),
are not changed in the middle of the implementation process. We do not want to
have one set of conditions applied now, only to be ratcheted up with additional conditions in the FERC re-licensing process.
We need a clear Congressional directive to the National Marine Fisheries Service,
the Federal Energy Regulatory Commission and non-governmental organizations
that Spring Run Chinook Salmon will not be an issue in the FERC re-licensing process. We only request that this condition be in place for the term of the settlement
agreement. We accept the likelihood that our licenses will have a re-opener condition for Spring Run Chinook Salmon in 2026. We believe our proposed legislative
language is fair and reasonable. We believe it provides the SJTAs members with
the same level and duration of assurances as given to the settling parties. We believe the language we have offered accurately, concisely, and succinctly sets forth
what the parties intended in their settlement agreement and is necessary for our
continued support of the agreement.
Congressman Radanovich, the SJTA appreciates your leadership and guidance on
this historic settlement and legislation. Your continued insistence and unwavering
support of the key concept of no redirected impacts has made it possible for us to
support this settlement and yet protect the valuable resources and service we provide to our landowners and customers in the San Joaquin River Basin.
This concludes my testimony. Mr. Chairman, 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.
[The response to questions submitted for the record by Mr. Short

and Mr. Robbins follows:]
SAN JOAQUIN TRIBUTARY ASSOCIATION
P.O. BOX 4060
MODESTO, CA 95352
(209) 526-7405
October 20, 2006
Honorable Richard Pombo, Chairman
Washington, DC 20515
RE: Response to follow up questions from The Honorable Devin Nunes
Subcommittee on Water and Power hearing October 5, 2006San Joaquin
River Settlement
Dear Mr. Pombo:
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You forwarded a set of follow up questions propounded by Mr. Nunes as set forth
above. We understand these questions to have been submitted to all witnesses before the subcommittee. Some of the questions can only be answered by other witnesses.
The following answers respond on behalf of Mr. Allen Short, General Manager of
the Modesto Irrigation District and Coordinator of the San Joaquin Tributary Association (SJTA). SJTA is an association of California Irrigation Districts (ID) with
water rights, storage, power, and irrigation facilities on the Stanislaus, Tuolumne
and Merced Rivers, tributary to the lower San Joaquin River. Its members are:
South San Joaquin ID, Oakdale ID, Modesto JD, Turlock ID, and Merced ID. Reference to Mr. Shorts original testimony is made for further details.
These answers are jointly provided by Kenneth Robbins, General Counsel to
Merced ID and Special Counsel to the SJTA, to whose original testimony reference
is also made.
RESPONSE
on the potential water losses on a district-by-district level and
wateruser-by-wateruser level? If so, can you provide a copy of that
analysis to the Committee?
Answer: We understand that this question is directed towards the Friant Water
Users Authority. Regarding the SJTA agencies, the hydrographs that might be developed by regulatory agencies for the support of Spring Run Salmon on the tributary rivers are unknown and an analysis of potential water losses to the SJTA members has not been performed. However, because of the need for cold water habitat
below the main dams of the districts and the water requests of the Anadromous
Fish Restoration Plan (AFRP), the SJTA members expect a demand for large scale
additional water requirements potentially doubling current requirements.
In addition, significant concerns were raised about potential monetary costs to
screen diversions as needed to prevent the loss of a threatened species and operational changes to storage which would have impacted electric generation at peak
demand.
It should be noted that if the current agreement regarding implementing legislation actually results in the adoption of the legislation these impacts will not occur.
The Spring Run Salmon will be reintroduced as an experimental population under
section 10(j) and 4(d) of the Endangered Species Act.
2. According to the California Department of Fish and Game, Fish
Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of
California (page 31), by 1928 there were very few salmon remaining
in the San Joaquin River above the Merced River and that the historical salmon fishery that once existed had been severely depleted. Considering this is 15 years before the construction of Friant Dam, how
Answer: This question should be answered by the California Department of Fish
and Game and the National Marine Fisheries Service.
3. What is reasonable expectation of success relating to reintroduction of
spring-run Chinook salmon into the San Joaquin River? How many
program?
Answer: This question should be answered by the Settling Parties. Mr. Short
and Mr. Robbins have received assurance that in years when flow levels create temperature issues of concern to out-migrating Fall Run Salmon on the tributary rivers,
the Upper San Joaquin hydrograph will be adapted by moving the spring flows to
an earlier date. The process and parameters of that adaptation are the subject of
negotiations between the Bureau of Reclamation, the Settling Parties and the third
parties which are intended to be memorialized by a memorandum of understanding
(MOU). That is why the MOU is so important to the Third Parties.
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quality improvements in the Delta?
Answer: This question should be answered by Settling Parties. From the analysis by the third parties it appears that there will only be marginal improvement
in water quality at Vernalis and in the South Delta. The additional water contribution would only very rarely provide significant improvements, usually in March. No
water quality standards adopted by the State Water Resources Control Board
(SWRCB) will be met with flows from the restoration, though small amounts of
water currently used to meet standards from New Melones may be conserved.
Answer: This should be answered by the Friant Water Users Authority.
the estimate?
Answer: Because of the referral of Reach 4B to a study and implementation at
a later date in the legislative settlement, answering witnesses are not aware of the
total current known cost, though savings from original estimates may be achieved
from such referral if the Mariposa by-pass is ultimately used.
Answer: Answering witnesses are unaware of constraints after 2026 to actions
which might be brought under the issues resolved in the Settlement Agreement. Of
course, all waters of California may be subject to actions before the SWRCB on a
number of issues, including water quality. Answering parties are unaware of any
bar to third party suits on matters which are not the subject of the settlement, nor
is there any bar to claims arising from the regulatory requirements such as NEPA
or CEQA.
Respectfully submitted,
Allen Short
General Manager, Modesto Irrigation District
Coordinator, San Joaquin Tributary Association
Kenneth M. Robbins
General Counsel, Merced Irrigation District
Special Counsel, San Joaquin Tributary Association
Mr. RADANOVICH. Good man. Thank you, Mr. Short.

The Committee would like to welcome Mr. Ken Robbins, who is
the General Counsel of the Merced Irrigation District. Ken, welcome to the Subcommittee.
STATEMENT OF KEN ROBBINS, GENERAL COUNSEL,
MERCED IRRIGATION DISTRICT, MERCED, CALIFORNIA
Mr. ROBBINS. Thank you, Mr. Chairman. Again, I am the General Counsel for Merced Irrigation District that operates the Exchequer Project on the Merced River, which is the first river on the
San Joaquin system that the water coming down the San Joaquin
will arrive at. And that is important, because one of the concerns
we have, one of the many concerns we have about this project, notwithstanding the fact that we are in support of the agreement because we believe what the parties have said in their settlement and
what they have said before you today, that they intend no thirdparty impacts.
Nevertheless, we managed our systems on the Merced, the
Tuolumne, and the Stanislaus for the protection and propagation
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of Fall Run Salmon. One of the things we do besides provide irrigation water and power and domestic water, et cetera, is that we do
maintain water in the river, and we do ensure that that water occurs whether or not the rainfall is going to contribute to that. We
will often use storage water to make sure those rivers stay in tact.
But those systems are managed for Fall Run. Now, the problem
with the water arriving from the San Joaquin under the settlement
is that without some sort of adaptation, there might be years in
which the water arriving at the confluence of the Merced will simply be too hot for the survival of Fall Run Salmon, who will be
outmigrating from the system in the springtime.
Now, the parties have been talking to us, and we have gotten assurances from them that adaptations will be made. But obviously,
it makes us very nervous, and we would want to be able to ensure
that we had input to the decisions that are being made about how
the adaptations for the settlement water would be made in order
to make sure that the Fall Run Salmon that currently exist on the
San Joaquin system is not harmed.
The second major concern we have, of course, is that Spring Run
Salmon is, in fact, a listed species. It is a threatened species. It will
have to actually be seized, or part of the population will have to
be captured or taken from a hatchery in the northern part of California, most likely, to be deposited in the San Joaquin. And when
that happens, of course, every single project, every water project,
every diversion, every landowner, every system that interfaces with
the San Joaquin faces the potential impacts of the Endangered
Species regulatory activities on us.
And so what we have suggested are a couple of tools be used that
already exist in the Endangered Species Act. We are not asking for
any modification of the Act. We are simply asking for the tools that
are already in the Act be implemented.
One of those tools is referred to as Section 10[j]. It is for an experiment. And you have heard it classified this morning by all of
the parties as an experiment. We will be putting water into the
river, we are going to be putting fish into the river; we are going
to be testing, we are going to be trying to find out exactly what
those fish returns are going to look like, and whether or not they
can be sustained.
During that time, this fish can be classified by the National Marine Fisheries Service under 10[j] as an experimental population.
We expect, during that process, that they will find this population
in the part of the Sacramento where they take these fish to be essentially non-essential to the survival of the species, or they
wouldnt be moving it to the San Joaquin, quite frankly, where the
risks to survival are going to be much higher for that fish.
So once they have found this to be an experimental population,
and that this is a non-essential part of the population, we gain a
whole lot of things.
First, under Section 4[d] of the Endangered Species Act, we are
eligible for take limitations. And those take limitations or exceptions can be made all through the San Joaquin system; and indeed,
with proper crafting, might be made neutral in the Delta, such that
additional concerns arising in the Delta might not be impacted. As
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long as that species remains threatened, we are entitled to the 4[d]
protection.
What 10[j] does is to say something else. It says that in so long
as that species is an experimental species, even if it descends to an
endangered status, you may still be eligible for the take exceptions
under 4[d], one. Two, no critical habitat gets designated. What that
means for landowners and for all of us should be obvious. The
interferences with individual property rights and the accommodations that we must make for critical habitat would be off the table.
And finally, our Section 7 consultations for the FERC relicensing
would be considering Spring Run as simply a species of concern,
rather than as an endangered, threatened species.
So we are hopeful that language we are working out now can be
put into play, so that the Secretary will exercise those discretions
prior to the reintroduction of Spring Run and resolve this issue.
Thank you very much.
[The prepared statement of Mr. Robbins follows:]
Statement of Kenneth M. Robbins, General Counsel,
Merced Irrigation District
Good morning Chairman Radanovich and members of the Subcommittee. My
name is Ken Robbins and I am General Counsel for Merced Irrigation District. I
am pleased to have this opportunity to testify regarding the proposed legislation
that would implement the settlement agreement reached by the parties to the
Friant litigation.
Merced Irrigation District is part of the San Joaquin Tributaries Association
(SJTA), a group of five associated Irrigation Districts with water storage and hydroelectric facilities located on the three principal tributaries to the San Joaquin River
(SJR). Mr. Short has already testified on behalf of the SJTA, so I shall not revisit
those points.
I am here today to testify about the impacts the proposed settlement will have
on Fall Run Chinook Salmon and the operations of the Districts hydroelectric and
water supply facilities.
Let me preface my remarks by reiterating what Mr. Short said earlier. The SJTA,
including the Merced Irrigation District, is supportive of the goals of the proposed
settlement. The District is confident the proposed settlement can be implemented
in a manner that ensures both the restoration of the SJR 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. My
testimony will offer suggestions and a proposed legislative approach to ensure the
settlement goal of no third-party impacts is achieved.
The five eastside irrigation districts of the SJTA have expended substantial 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 studies and monitoring and restoration activities, and the Merced
River Fish Hatchery.
The SJRA/VAMP
In May of 1995, the State Water Resources Control Board, as part of the river
flow objectives in the 1995 Bay-Delta Plan, set minimum monthly average flow
rates on the San Joaquin River at Vernalis. The Sacramento and San Joaquin River
flow objectives were included to provide attraction and transport flows and suitable
habitat for various life stages of aquatic organisms, including Delta smelt and Chinook salmon.
The five Eastside irrigation districts, the City and County of San Francisco, the
San Joaquin River Exchange Contractors and the Friant Water Users Authority settled with the United States Bureau of Reclamation and the California Department
of Water Resources resolving a dispute on how the responsibility for implementing
the flow objective was to be met. This consensus resulted in the San Joaquin River
Agreement, and the ongoing experiment commonly known as VAMP.
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Under the VAMP, the five Eastside irrigation districts and the San Joaquin River
Exchange Contractors agree to provide a supply of up to110,000 acre-feet for an
AprilMay pulse flow. In addition, the parties expend $750,000 a year to conduct
the VAMP experiment which is designed to gather better scientific information regarding fisheries on the lower San Joaquin River.
Federal Energy Regulatory Commission
Flows for facilities operated by the Modesto Irrigation District and Turlock Irrigation District on the Tuolumne River are governed by Article 37 of the Federal Power
License for the Don Pedro Project (FERC Project No. 2299). The minimum flows are
designated by 10 different water-year types ranging from Critical & Below to Median Wet/Maximum. Each year is broken into three time periods plus two pulse periods. The minimum annual flows ranged from 94,000 acre-feet to 300,923 acre-feet,
mainly for the benefit of Fall Run Chinook Salmon.
Merced Irrigation District operates the Merced River Hydroelectric Project (FERC
No. 2179), a 103.5-megawatt project consisting of the Exchequer and McSwain developments. Under its FERC license, Merced Irrigation District provides flow based
on two year types, as defined by its license. These flows, when combined with the
flows required pursuant its Davis-Grunsky Agreement with the State of California,
provide annual flows totaling about 100,000 acre feet per year. That amount of
water is doubled across the salmon spawning grounds as Merced releases even more
water to downstream water right holders. In addition, Merced Irrigation District
provides 12,500 acre-feet of water in October, the equivalent of approximately 200
cubic feet per second, pursuant to a memorandum of understanding with the California Department of Fish and Game. These flows are maintained predominantly for
the benefit of Fall Run Chinook Salmon.
District Operations
Currently South San Joaquin Irrigation District and Oakdale Irrigation District
on the Stanislaus River spend approximately $500,000 annually to operate rotary
screw traps and the Vika weir, and to participate in gravel restoration, habitat restoration and river mapping.
Modesto Irrigation District and Turlock Irrigation District on the Tuolumne River
collectively have spent about $500,000 a year for the last 10 years on their
Tuolumne fishery program. Another $1,000,000 has been spent on restoration work
over that same time period. The $500,000 annual expenditure is expected to increase in the years ahead.
Merced Irrigation District invests over $475,000 annually to operate its Fall Run
Salmon enhancement program in conjunction with the California Department of
Fish and Game. The Merced Irrigation District and the California Department of
Fish & Game have entered into a ten-year agreement for studies and projects to address habitat and salmon restoration programs on the Merced River. This program
is known as Merced River Adaptive Management Program or MRAMP. The district has committed matching funds of $5 million over a ten-year period for this
program.
Merced River Fish Hatchery
Merced Irrigation District and the California Department of Fish and Game, in
collaboration with the State Water Contractors, have agreed to cooperatively fund
the future operation and management of the Merced River Fish Hatchery. Annual
operating costs for the Merced River Fish Hatchery are over $400,000. These costs
are scheduled to be borne by the Merced Irrigation District, the Four Pumps Agreement Group, and the San Joaquin Tributaries Association. Fall Run Chinook Salmon production from this facility is targeted at about 960,000 smolts per year. The
hatchery production is devoted to maintenance of the Merced River Fall Run salmon, the VAMP program delta studies, and other experimental programs conducted
on other California Rivers in the San Joaquin Valley by the California Department
of Fish and Game and their partner agencies.
The status of Fall Run Chinook Salmon on the San Joaquin River and its tributaries is one of improvement, but still of concern. At the end of an unprecedented
six year drought, from 1987-1992, salmon returning to the San Joaquin River basin
numbered about 1,373, including hatchery fish. Over the last ten years Fall Run
Chinook Salmon production in the San Joaquin River basin has ranged from a low
of 14,023 to a high of 79,679. Recent trends have once again been troubling.
In 1998, Fall Run Chinook Salmon became a candidate species for listing as
threatened under the Endangered Species Act. In recent testimony to the State
Water Resources Control Board, the California Department of Fish and Game expressed concern regarding the recovery of Fall Run Chinook Salmon in the San
Joaquin River basin. It stated:
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Fall-run salmon populations in the SJR Basin are not making progress
toward meeting the narrative doubling goal.
So we are not out of the woods yet in terms of assuring the recovery of Fall Run
Chinook Salmon in the San Joaquin River basin. It is still a species of concern.
Third-Party Impacts of Settlement
The problem we identified early to the settling parties was the impact of the released water from Friant on water temperatures at the confluence of the Merced
and Tuolumne Rivers. If the temperature of water flowing down from Friant is too
hot it will literally cook the little Fall Run Chinook Salmon smolts out-migrating
from the Merced and Tuolumne Rivers. In response to our concerns the settling parties have agreed to advance the pulse flows to an earlier date depending upon air
and water temperatures. We do not know if this will be sufficient nor do we yet
have a voice in how this will be done.
Plaintiffs expert focused his temperature criteria solely on Spring Run Chinook
Salmon. Dr. Peter Moyle testified that temperatures as high as 74 degrees Fahrenheit would protect Spring Run Chinook Salmon during the Spring migration period. The California Department of Fish and Game has recommended optimal temperatures for Fall Run Chinook Salmon of 55 degrees Fahrenheit and set lethal temperatures at 62 degrees Fahrenheit during this time period. If Plaintiffs expert is
incorrect, or the California Department of Fish and Game is correct, then Fall Run
Chinook Salmon smolts leaving the Merced and Tuolumne Rivers may perish.
Of course, another potential consequence of such a scheme would be to have
Merced Irrigation District, or others, release massive amounts of water over what
is currently required to maintain, if possible, cold water temperatures. This could
have a major impact on the Merced Irrigation District and its farms and cities in
terms of power production, storage and water supply reliability. It would have a
lesser impact on the Tuolumne River system, but there would be a similar demand
for additional water.
Merced Irrigation Districts position is that an experimental fish population
should not be reintroduced to the detriment of an existing species of concern, Fall
Run Chinook Salmon. These impacts must therefore be mitigated.
This brings me to the second major point of my presentation, the reintroduction
of Spring Run Salmon and its impact on Merced Irrigation Districts hydroelectric
and water supply facilities. The Merced River Project and other SJTA projects are
focused on Fall Run recovery, which involves concentrated water requirements from
the fall through spring. Fall Run generally return from the ocean from late October
thru December. They spawn and their progeny migrate out of the system in the
spring. Because of winter rain runoff and colder winter temperatures, satisfactory
salmon habitat is much easier to maintain in the foothills. Spring Run, on the other
hand, require summer fresh water habitat as most of the population spend an entire
year in the system before migrating to the ocean. This means cold water temperatures must be maintained in the foothills throughout weeks of 100+ degree days.
The Spring Run no longer has access to the high mountain regions of the San
Joaquin Sierra Mountains as they do in some areas of Sacramento Sierras.
Merced Irrigation District does not agree with the settling parties that conditions
are conducive now or will be in the future on the upper San Joaquin River for the
reintroduction of Spring Run Salmon. We have only to look to the mainstem Sacramento River from Redding to Red Bluff. The overall population trend for Spring
Run Chinook Salmon on the Sacramento River has been negative. Average abundance on the mainstem Sacramento River has gone from a high of 12,107 for the
period 1980-1990 to a low of 609 for the period 1991-2001. Spawning populations
are so low the California Department of Fish and Game biologists believe Spring
Run have nearly disappeared entirely from the mainstem Sacramento River. This
is not to suggest their condition on the Sacramento tributaries. However, it is important to recall that the settlement calls for Spring Run restoration on the
mainstem of the SJR, not its high mountain tributaries.
The Sacramento River has 4.5 million acre-feet of storage at Lake Shasta compared to Friants 500,000 acre-feet of storage on the SJR. The flows on the Sacramento River can be 10 times the flows on the upper SJR. The Sacramento River
has 100 miles of deep pools, cold water and shaded riverine aquatic habitat. The
San Joaquin River has neitherand will have nothing even remotely comparable
to the Sacramento for decades, if ever.
In fact, as Plaintiffs expert, Dr. Moyle, pointed out, in many years when it is dry
it will be necessary to trap and truck the fish because flows will not be sufficient
to sustain them. In critically dry years there may be no water at all.
I do not say this as a pessimist. There are reputable biologists who suggest the
experiment may work. But make no mistake, this is an experiment. The third
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parties, particularly the SJTA districts operating water storage projects on the SJR
tributaries below the proposed Spring Run restoration area, do not want to get left
holding the bag for a potentially failed experiment, if the experiment fails in the
target area and the National Marine Fisheries Service (NMFS) determines the
Spring Run cannot be restored as set out in the settlement.
The Need to Legislate Third-Party Protections
To avoid these potential impacts, the third parties have offered language to
amend the proposed legislation accompanying the settlement agreement to protect
the Eastside districts, as well as the San Joaquin River Exchange Contractors, other
diverters on the mainstem San Joaquin River and the USBR and DWR at the Delta
pumping facilities. This language leads to the making of certain findings under section 10(j) of the Endangered Species Act (ESA) prior to the re-introduction of the
threatened Spring Run salmon. It also protects the Merced, Turlock and Modesto
Irrigation Districts from having to mitigate impacts to the experimental population
of Spring Run prior to 2026 when their hydroelectric projects are relicensed by
FERC in 2014 and 2016.
ESA Section 10(j)
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. 1539(j). At the present time, NMFS has not adopted any regulations concerning experimental populations, although it is permitted to do so under the ESA.
The U.S. Fish and Wildlife Service (USFWS) has, however, 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.
1539(j)(1); 50 C.F.R. 17.80(a). When a population is designated experimental,
it is treated as if it were listed as a threatened species, rather than an endangered
one. 16 U.S.C. 1539(j)(2); 50 C.F.R. 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. 1539(j)(2); 50 C.F.R. 17.81(f). 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. 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 Congress either
to make the required findings under Section 10(j), or at a minimum to predicate the
reintroduction of Spring Run in the SJR on the Secretary of Commerces making the
necessary findings. The required findings include:
1. that the San Joaquin River spring-run Chinook salmon is wholly separate from
any other population of the species, and is thus an experimental population;
2. that the loss of the experimental population would not appreciably reduce the
likelihood of the species survival in the wild, and the population is therefore
nonessential;
3. that the reintroduction of spring-run Chinook salmon in the San Joaquin River
will further the conservation of the species;
4. that take of San Joaquin River spring-run Chinook salmon that is accidental
or incidental to an otherwise legal activity, such as recreation (e.g., fishing,
boating, wading, trapping, or swimming), forestry, agriculture, operation of
dams and reservoirs for irrigation, hydroelectric power, municipal and industrial water supply, and other uses, and other activities that is in accordance
with federal, state and local laws and regulations, is permitted; and
5. that the reintroduction San Joaquin spring-run Chinook salmon nonessential
experimental population is within the historic range of the species and shall
include the San Joaquin River watershed, including its tributaries, and that
all spring-run Chinook salmon found within these boundaries will be considered nonessential experimental animals.
With regard to the wholly separate criterion, the reintroduction of Spring Run
to the SJR should qualify as no other populations of Spring Run exist on the SJR
or its tributaries. Indeed, to reintroduce them individuals or eggs of Spring Run on
the Sacramento River will have to be transported to the SJR.
With respect to the required finding that the experimental populations loss would
not appreciably reduce the species likelihood of survival, it would be difficult to
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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 habitatparticularly 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.
In making the findings, Congress would also determine that current lawful operations in the SJR watershedincluding tributary water supply and hydroelectric operations on which the SJTA districts are critically dependentwould not be subject
to take under the ESA for the re-introduction of this non-essential fish population
pursuant to section 4(d).
This protects all SJR and tributary water operations in three ways. First, if the
experimental reintroduction of 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 affect on the reintroduced Spring Run Chinook Salmon
therefore do not need to be changed. Third, the designation of the reintroduced
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.
FERC License Protections
Finally, 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 want this same protection given to them for their FERC re-licensing. Merced
Irrigation Districts current FERC license expires in 2014, while Modesto Irrigation
District and Turlock Irrigation District will seek to re-license their Don Pedro
Project in 2016. These Districts do not want the National Marine Fisheries Service,
which otherwise has mandatory conditioning authority under section 18 of the Federal Power Act and section 7 of the ESA, to condition their licenses with terms and
conditions related to the reintroduced, experimental, non-essential fish population.
The Districts want this protection until 2026. The Districts are agreeable to have
a re-opener clause in their new FERC licenses to specifically address the populations status at that time, but not earlier.
This concludes my testimony. Mr. Chairman, thank you for the invitation to testify before this Sub-committee today. I will be happy to answer any questions members of the sub-committee may have.
[NOTE: The response to questions submitted for the

record by Mr. Robbins and Mr. Short can be found on
page 77.]
Mr. RADANOVICH. Thank you, Mr. Robbins. Next is Mr. Steve
Chedester from the San Joaquin River Exchange Contractors
Authority.
Steve, welcome to the Subcommittee. You may begin.
STATEMENT OF STEVE CHEDESTER, EXECUTIVE DIRECTOR,
SAN JOAQUIN RIVER EXCHANGE CONTRACTORS WATER
AUTHORITY, LOS BANOS, CALIFORNIA
Mr. CHEDESTER. Thank you, Chairman and Members of the Subcommittee. As mentioned earlier, my name is Steve Chedester. I
am the Executive Director of the San Joaquin River Exchange Contractors Water Authority. And we are, of course, one of the third
parties, and I do want to thank you, especially Chairman, for allowing us to have this hearing so we can vet these third-party
issues straight out.
We have four main issues I just want to start talking about on
this. One of them is water rights protection, ESA protection,
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adequate funding for the implementation of this, and adequate representation on an implementation committee.
You have heard about this earlier today almost on all of these.
But one of them that wasnt talked about much is water rights protection. The exchange contractors, the Water Authority represents
four districts, four districts that comprise 240,000 acres. They hold
senior water rights on the San Joaquin River mainstem, and by nature of the contracts that we signed with the Federal government
and a purchase contract that actually allowed the building of
Friant Dam.
Our rights are still there. We still have them. We want to make
sure that anything that happens in this legislation, it has to be
clear and ambiguous language that our water rights and our contracts are protected and respected. That is not a movable subject.
As all of the panelists earlier have said, ESA protection, we fully
support having ESA protection. Number one, mainly because we
are right along the San Joaquin River. We are in Reach 2, 3, 4, and
5. So 80 percent of the implementation that is going to occur
through this settlement is going to occur in our service area.
We support the 10[j] designation that was discussed earlier, and
think that it is critical to have that to be able to go forward with
this settlement.
Our biggest point is, is there going to be adequate funding for
the implementation of this project? And more importantly, is there
going to be adequate funding for the mitigation that is going to be
required? We just want to be very direct with the Committee. Our
growers are going to be impacted. It is not if or maybe; we are. So
now it is a matter of how are you going to mitigate it.
We want to make sure that the mitigations are captured, the
process to address those through a feasibility study, a phasing
through feasibility, NEPA, SJRECWA, and making sure that all of
that is taken care of ahead of time, before flows or fish are introduced.
We dont want to be sitting here in 20 more years and have half
of a project built, and have it fall upon our growers, who have been
impacted because you havent completed the project. We want to
make sure there is a proper phasing to make sure that it can be
done, funding is identified, and it is completed. With that, that alleviates a lot of our concerns, and that is critical for our support.
And then the adequate representation on the implementation
committee. There was talk about this Technical Advisory Committee. Whether it is that or another one, it needs to be a committee that we have equal say on how this gets implemented.
Again, our area is going to be the most impacted by this. We have
to have a vehicle by which our concerns are more than just heard;
we have to have reasonable consideration that they are going to be
acted upon so that it gets done properly.
One of the biggest issues that is going to happen as far as implemented is this 4B. It has been mentioned a couple times. Let us
just back up.
In my testimony you have attached are some maps that show
what the river looks like today, and what it looks like down
through Reach 4B. 4B hasnt had any water in it, and I mean zero
flows, from the mainstem of the San Joaquin since 1969. Not in the
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1997 flood did it have any flows, not last year or this year. There
is an existing flood bypass system that is there. It passes flows.
We need to make sure that if you are going to try to consider
even using the old stem, Reach 4B, that it needs to be done in
phases. Take a look at what is going to happen if you want to run
the prescribed, up to 475 cfs. That needs to be looked at, studied,
NEPA/SJRECWA, and then mitigate the impacts that are going to
occur from just the 475. Then go back and look at what you are
going to do in making your decisions on the broader higher flows
of up to 4,000 cfs.
If we can get assurances that those kinds of processes are in
place, funding is available, we would be very supportive of this legislation and back it. We do support, though, I want to say, the settlement that has been proposed, and we think it is a good way to
go, as long as and it is contingent upon these issues adequately
being addressed.
I would be happy to answer any questions.
[The prepared statement of Mr. Chedester follows:]
Statement of Steve Chedester, Executive Director,
San Joaquin River Exchange Contractors Water Authority
Good morning, Chairman Radanovich 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.
You have before you legislation that will implement a Settlement Agreement that
has been entered into among parties to the litigation instigated by the Natural Resources Defense Council seeking to restore flows for fisheries to the upper San
Joaquin River. The Exchange Contractors are not a party to this Settlement Agreement. The Exchange Contractors were nominally represented in the litigation by
virtue of our member agencies membership in the San Luis & Delta-Mendota Water
Authority (Authority), a water user group that receives water from the Bureau of
Reclamation and which intervened in the subject litigation. The Authority did not
play an active role in the litigation or the settlement, as there was never an opportunity for its interests to be fully aired. However, the Exchange Contractors intend
to submit an amicus brief to the District Court raising its concerns with the proposed Settlement. I will provide copies of that brief to the Sub-committee once it
is filed.
As you know, the proposed Settlement will obligate the Bureau of Reclamation to
release water from Friant Dam in order to protect downstream fisheries. The bulk
of this water will come from a reduction of water supplies to the members of the
Friant Water Users Authority. These irrigation districts receive water from the Bureau of Reclamation through their contracts entitling them to water from the Central Valley Project. According to the terms of the Settlement Agreement, any additional water will only be provided from willing sellers. The Settlement Agreement
also states that there will be no material adverse effects on other water users. It
is to this issue that we have serious concerns.
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. Our water rights date back to the 1880s, when these water rights were first
established by Henry Miller and Charles Lux. The members of the Exchange Contractors are the Central California Irrigation District, Columbia Canal Company,
Firebaugh Canal Water District and San Luis Canal Company.
Farmers in our area grow 38 different varieties of permanent and annual crops.
There are over 1500 farmers within the combined districts and we support $400 million of economic output at the farm gate which translates into over a three fold effect to the regional economy. This figure does not include the significant economic
output from the dairy industry in our area. Our lands play host to several endangered species and of necessity we are good stewards of the environment. We support
solutions for the Bay-Delta ecosystem by providing water for the Vernalis Adaptive
Management Plan and providing water to the local wildlife refuges.
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While we are not contractors to the Central Valley Project, by virtue of our exchange contract and our purchase contract, we have exchanged our source of
water from the San Joaquin River for a supply from the Central Valley Project via
the Delta-Mendota Canal. The development of the exchange contract enabled the development of the Central Valley Project by the Bureau of Reclamation, including the
construction and operation of Friant Dam. In the event that the Bureau of Reclamation is unable to meet its contractual obligations to the Exchange Contractors, we
are entitled to resort to our senior water rights and receive a flow of water down
the San Joaquin River. This is an important fact, as any increase in capacity to the
San Joaquin River for restoration flows must be of a sufficient size to enable the
Exchange Contractors to receive their water right entitlement to a flow of 2,316 cfs
as is provided for under the exchange and purchase contracts. In other words, as
the size of the channel capacity needed for the restoration effort is being considered,
capacity must be provided so that the Bureau of Reclamation can meet its obligation
to deliver the water the Exchange Contractors are entitled to under their pre-1914
water rights.
The Exchange Contractors have four major concerns with the Settlement Agreement. These concerns are:
I. WATER RIGHT PROTECTION
It is essential that our contract rights with the Bureau of Reclamation and our
historical water rights be honored and protected. The settling parties state in their
Settlement Agreement that they do not believe that there will be impacts to third
parties, the legislation then, must un-ambiguously affirm that the water rights and
contract rights of the Exchange Contractors will not ever be adversely affected by
this fish restoration program. We do not want to find ourselves in a situation akin
to the farmers on the Klamath River.
II. ADEQUATE ENDANGERED SPECIES ACT PROTECTION
In order to protect our water rights and water supply, it is essential that any fishery to be introduced into the upper San Joaquin River not expose the Exchange
Contractors to liability under the Endangered Species Act. We believe that it is essential for Congress to direct the Secretary of Commerce to exercise his discretion
to designate any fishery reintroduced to the San Joaquin River as a Section 10(j)
experimental population. While some have suggested a take exemption under Section 4(d), that option is insufficient as Section 4(d) only protects threatened species,
not endangered species.
III. ADEQUATE FUNDING FOR IMPLEMENTING THE MITIGATION
MEASURES
We understand that the goal of this program is to restore the salmon fishery to
the entire stretch of the San Joaquin River from Friant Dam to the confluence with
the Merced River. This 153 mile stretch of river has been without fish flows for over
60 years and many miles of river have been without any flows since 1969. The introduction of fish flows to many sections of the river will cause substantial damage to
downstream structures and downstream property unless mitigation measures are in
place prior to releasing the flows. As the legislation is currently crafted, it is possible for those entities that will implement the Settlement to construct facilities
along this entire stretch of river, release water from Friant Dam and introduce endangered species into that water without ensuring that necessary mitigation measures have been completed.
We do not want half of a project constructed. We also do not want to be in a position of supporting this legislation based on the hope that the terms of a permit to
be issued several years from now will protect us.
We believe the costs of this restoration effort could approach $1 billion dollars in
capital costs alone. Inflation will raise the costs over the years and operations and
maintenance costs are on top of these capital costs. In as much as Congress will
not appropriate the entire cost of this restoration effort at this time, we believe that
it is prudent to proceed with the restoration effort on a phased basis.
It is critical to understand that approximately 80% of the channel modifications
and mitigation for seepage will occur in our service area and almost all of the fish
screening and fish passage costs will occur in the reaches of river that we represent.
There will be impacts and risks shifted to our landowners by this settlement and
we are simply requesting that the mitigation required for implementation of the settlement be in place prior to reintroduction of fish flows and salmon.
We do not believe that the two phases identified in the proposed legislation and
Settlement Agreement are sufficient. Rather, the restoration effort should be undertaken by river reach starting with the upper most section of the river below Friant
Dam. That is an area that will be best suited to the initial planting of fish and will
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provide the most suitable habitat of the entire stretch of the upper San Joaquin
River. In-stream restoration actions must occur before fisheries can be introduced
into that reach of the river. After instream measures and any levees, slurry walls
and other mitigation measures are constructed, only then should water be released
to a given reach of the river. Any flows that would reach the lower stretches of the
river should be bypassed around those reaches until a final route is chosen and mitigation measures are in place.
While analogies are usually dangerous to make, I liken this to the construction
of a house. If you have enough money to build a 2 bedroom house you should not
frame out for 4 bedrooms only to run out of money without even completing 2 bedrooms. It is better that the 2 bedroom house be constructed up to code and that
plans be made for future improvements. This is a prudent course to take for the
restoration of the upper San Joaquin River.
To give you an idea of the problems and challenges the restoration effort will face
and the risks to adjacent properties that have to be mitigated, I have some photographs and diagrams that show the areas along the San Joaquin River that will be
affected. Attached as Exhibit A are a few photos of the San Joaquin River as it exists today throughout our service area. Additionally, we are including as Exhibit B
maps of the San Joaquin River from Friant Dam (reach 1) through its confluence
with the Merced River (reach 5).
In order to assist the Subcommittee in understanding what work needs to be undertaken along the San Joaquin River, in addition to the photos and maps, I also
have attached as Exhibit C a write-up by the engineering firm of CH2MHill analyzing the river reach by reach. Below is a chart summarizing their report. It shows,
reach by reach, the work that needs to be done to provide habitat for the salmon
and to protect the existing flood control facilities and the adjacent lands and water
facilities. The chart and attached analysis also contain cost estimates.
We know you are receiving a number of different cost estimates. We believe those
prepared by CH2MHill are reasonably accurate, but perhaps could be defined after
in-depth discussions with the Bureau of Reclamation and the California Department
of Water Resources. It may interest the Subcommittee to know that CH2MHills
work is supported by a $1 million study funded by the EPA and the company is
a contractor to the Bureau of Reclamation for purposes of analyzing aspects of the
Central Valley Project. In light of this substantial involvement with the CVP, we
believe CH2MHills analysis should be taken quite seriously.
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IV. ADEQUATE REPRESENTATION ON AN IMPLEMENTATION COMMITTEE

The proposed restoration program as ultimately conceptualized by the Settlement
Agreement will represent a comprehensive restoration program for the upper San
Joaquin River. However, since this is only a conceptual settlement and many specifics are left to implementation, it is essential that all affected parties be entitled
to participate in the implementation program. We believe that Congress should direct the settling parties and the federal and state fishery agencies as well as the
Bureau of Reclamation to participate in an implementation committee that will include in its membership as co-equal members the affected downstream water interests including the Exchange Contractors, San Joaquin River Tributary Association,
the San Luis & Delta-Mendota Water Authority and the San Joaquin River Resources Management Coalition. The purpose of this committee should be to advise
the implementing agencies on the impacts of the fishery and river restoration
90
efforts. This committee should be distinct from the settlement implementation committee known as the Technical Advisory Committee comprised of the Natural Resources Defense Council and the Friant Water Users Authority. Their task is to implement the Settlement Agreement. The task of this other committee should be to
restore the upper San Joaquin River in a manner consistent with the Settlement,
in a manner that does not adversely impact third parties, and in a manner that
sizes the restoration program to the funds that are secure.
In our view, inclusion of the above protections in the subject legislation is essential for our support of the legislation. We do not think this settlement should be put
on the backs of other farmers and water users. To that end, we support the water
agency draft of proposed amendments to the legislation that we will provide to the
committee. We have already provided this legislation to your respective staff.
Thank you very much for allowing me to testify before you today on behalf of the
Exchange Contractors. We sincerely hope that we will be able to support this legislation. If our interests are protected, we will be in a position to do so. I am pleased
to respond to any questions.
[NOTE: Attachments to Mr. Chedesters statement have been retained in the
Committees official files.]
[The response to questions submitted for the record by Mr.

Chedester and Ms. Skinner follows:]
P.O. Box 2115
541 H Street
Los Banos, CA 93635
(209) 827-8616
Fax: (209) 827-9703
e-mail: [email protected]
OCTOBER 20, 2006
The Honorable Richard Pombo
Chairman
Washington D.C. 20515
RE: San Joaquin River-Response to the Chairmans Letter of October 5, 2006
Dear Mr. Pombo:
Thank you very much for your letter of October 5,2006 in which you requested
that we respond to a series of questions submitted by Representative Devin Nunes
to all witnesses that testified before the Subcommittee on Water and Power on September 21,2006. As the Executive Director of the San Joaquin River Exchange Contractors Water Authority (Exchange Contractors) and as a landowner who will be
directly effected by the restoration we are pleased to be able to provide you with
these responses. For convenience each question is in italics followed by our response.
Question no. 1: Based on the terms of the Settlement, has an analysis been completed on the potential water losses on a district-by-district level and water user-bywater user level? If so, can you provide a copy of that analysis to the Committee?
Response no. 1: The Exchange Contractors have not compiled such an analysis
and we are not aware of any such analysis that has been conducted. Presumably,
this type of analysis will be required pursuant to the National Environmental Policy
Act (NEPA) for any actions undertaken by any federal agency and pursuant to
California Environmental Quality Act (CEQA) for any action undertaken by a
state or local agency.
Notwithstanding the fact that we have not conducted such a study, the Exchange
Contractors are concerned about the potential impact on their water supply as a result of the Settlement. Without going into great detail on the water rights of the
Exchange Contractors, please be advised that the Exchange Contractors hold water
rights on the San Joaquin River that are senior to those of the Bureau of Reclamation (Reclamation) as well as most other water users. Our pre-1914 water rights
total some 840,000 acre feet. Pursuant to the contract between the Exchange Contractors and Reclamation (as revised December 6,1967, the Exchange Contract),
the Exchange Contractors are entitled to receive a substitute supply of 840,000 acre-
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feet of water (650,000 acre-feet during critical years). Typically, this water is provided via the Delta-Mendota canal, but under 4(a) and 8 of the Exchange Contract, should Reclamation not be able to provide the substitute supply, the Exchange
Contractors are entitled to receive this supply of water from the Friant Dam down
the San Joaquin River. We are concerned that in the event that supplies from the
Delta Mendota Canal are interrupted as a result of either physical or regulatory actions, planned or unplanned, that the release of water for fisheries from Millerton
Lake will potentially reduce the amount of water otherwise available to the Exchange Contractors. In order to better understand the Exchange Contractors rights,
I am enclosing with this response a copy of our amicus brief that was filed with
the United States District Court in the matter of Natural Resources Defense Council
v. Rodgers, et al, which case has lead to the current Settlement.
Question no. 2: According to the California Department of Fish & Game, Fish Bulletin No. 17, The Sacramento-San Joaquin Salmon Fishery of California (Page 31),
by 1928 there were very few salmon remaining in the San Joaquin River above the
Merced River and that this historical salmon fishery that once existed had been severely depleted. Considering this is 15 years before the construction of Friant Dam,
how would the Settlement change historical facts?
Response no. 2: In as much as the Exchange Contractors are not proponents of
the Settlement, they do not have any greater insight as to the physical or biological
chances for success of this experimental program than any other party. However,
according to our consulting biologist, Dr. Kathy Freas of CH2M Hill, review of the
experiment is going to be very challenging and the chances for successful reestablishment of a self-sustaining population of spring run Chinook salmon is marginal.
In fact, we note that Settling Parties measurement of success, seven years or more
following the reintroduction of spring-run Chinook salmon to the San Joaquin River,
is an annual escapement of 500 fish (Settlement, 20(d)(l)(B)).
Question no. 3: What is a reasonable expectation of success relating to reintroduction of spring-run chinook salmon into the San Joaquin River? How many naturally
reproducing spring-run chinook salmon can we expect to inhabit the San Joaquin
River as a result of the proposed restoration?
Response no. 3: In addition to our response to Question No. 2, the National Marine Fisheries Service (NMFS) has characterized this program as an experiment.
We have heard their biologists explain that they believe that the salmon to be reintroduced should be treated as an experimental population pursuant to Section
10(j) of the Endangered Species Act. We agree. There are serious problems associated with the proposed restoration effort. Without going into great deal, and we
trust that the settling parties will provide you with this detail, there are many
physical and biological challenges to the reintroduction and restoration of the spring
run chinook salmon fishery. Among those challenges are the following:
Additional spawning habitat is needed in Reach 1 as the current spawning
habitat is inadequate.
A defined low-flow channel is needed in Reaches 2A and 4B to provide appropriate water depths and temperatures for passage for adult salmonids during
upstream migration and juvenile salmon during outmigration.
An appropriate hydrologic flow regime is needed to promote the establishment
of riparian vegetation where it does not exist and prevent encroachment of
vegetation into flood control channels.
Need to maintain suitable water temperatures in all reaches of the San Joaquin
River to prevent salmon mortality along with increased susceptibility to disease
and predators.
Preventative measures are needed to control predation by largemouth bass and
other predatory fish (e.g., smallmouth bass and pikeminnow) known to inhabit
the gravel pits, Mendota Pool, and other portions of the San Joaquin River.
Modifications are needed to existing barriers to fish migration along the San
Joaquin River including the Chowchilla Bifurcation Structure, Mendota Dam,
Sack Dam, the Sand Slough Control Structure, and the Mariposa Bypass Bifurcation Structure.
Screening of numerous diversion structures and sloughs will be needed to prevent fish entrainment and mortality. This would include screening the diversion
structures in the Mendota Pool or constructing a bypass around the pool similar
to the Mendota Pool Bypass proposed by the Settlement parties.
An appropriate spring-run stock that could adjust to the wanner water conditions of the San Joaquin River will be needed for reintroduction. In addition,
NMFS will need to allow for the use of this stock, which may be listed as
threatened or endangered and may affect restoration efforts in other river
systems, for reintroduction efforts on the San Joaquin River.
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From the foregoing, it should be evident that this restoration program faces some
very real and difficult challenges. It may be necessary at some point to conclude
that this experiment is a failure. If so, that will be a decision made by NMFS presumably in consultation with the Secretaries of Commerce and Interior. The Exchange Contractors will be watching this program carefully, both in terms of its
ability to actually restore a salmon population as well as for potential impacts on
our operations and those of our downstream farming constituencies.
Question no. 4: Considering that the restoration of a salmon run will require consistent cold water flows, is there apian to develop temperature controls to eliminate
impacts on downstream tributary salmon runs? If so, what are the details of the
plan?
Response no. 4: The Responding witnesses are not aware of any current plan
to provide sufficient coldwater to the downstream fishery. It will be very important
to maintain an adequate coldwater pool behind Friant Dam for this purpose. Even
so, should NMFS attempt to use the channel of the San Joaquin River such as it
may exist or be improved, this will exacerbate an already difficult temperature control situation. Assuming that the channel is recreated and widened to a flow of 475
cubic feet per second (cfs), there will still be tremendous temperature gain in the
80 miles of the San Joaquin River that run through the service area of the Exchange Contractors. This stretch of river was historically a braided river that spread
out widely across this portion of the San Joaquin Valley. Again, in conjunction with
any effort to restore the salmon fishery, we believe that these are the types of studies that must be conducted prior to the reintroduction of any fish into the river.
Question no. 5: Would the funds authorized by the proposed settlement legislation
produce better results on streams other than the San Joaquin River-in terms of increasing the population of spring-run chinook salmon?
Response no. 5: The responding witnesses believe that NMFS is in the best position to respond to this question. Nevertheless, we find it hard to believe that $1 billion could not be better spent elsewhere to produce spring run salmon. NMFS is currently working with parties in other areas of California to improve spring run salmon populations. For example, recently the California Department of Water Resources
submitted a license application for the Oroville Facilities hydroelectric relicensing
(P-2100) to the Federal Energy Regulatory Commission. According to the draft environmental impact statement, the Department of Water Resources proposes to spend
several hundred million dollars restoring habitat for a salmon fishery. This will include spring run chinook salmon, fall run chinook salmon and steelhead on the
Feather River. It is our understanding that there are hopes of creating several thousand additional fish on the river at a cost substantially less than the nearly $1 billion being proposed for expenditure on the San Joaquin River.
Question no. 6: Please identify how the terms of the Settlement will provide water
quality improvements in the Delta.
Response no. 6: This question should be answered by settling parties. However,
from the analysis of the third parties it appears that very marginal improvement
will be provided as any additional water contribution would only rarely provide improvements in Delta water quality and when it did it usually occurred in March
when there is minimal irrigation demand. No current water quality standards
adopted by the State Water Resources Control Board (SWRCB) will be met with
flows from the restoration, though small amounts of water currently used to meet
standards from New Melones may be conserved.
Question no. 7: Is there a plan to address the groundwater overdraft that will
occur as a result of reduced water deliveries to the Friant Division? If so, what are
the details of the plan?
Response no. 7: This should be answered by the defendants since we do not have
sufficient knowledge to adequately respond to this question.
Question no. 8: What are the estimated costs to implement the restoration plan proposed in the Settlement? Please provide details on how you develop the estimate.
Response no. 8: Please see the attached analysis prepared by CH2MHill. In
summary, CH2MHills estimate is based upon costs projected forward to mid-term
construction schedule of 2014 based upon 6% inflation factor. Their estimate totals
$1,071,537,000, which includes use of the river channel in Reach 4B, rather than
the by-pass. If the by-pass is used, the costs will be reduced by $260,000,000.
The San Joaquin River between Friant Dam and the confluence of the Merced
Damwhich is the part of the river subject to the Settlementis broken down into
the following Reaches: Reach 1 runs approximately 38.5 miles from Friant Dam to
Gravelly Ford; Reach 2A runs approximately 13 miles from Gravelly Ford to the
Chowchilla Bifurcation Structure; Reach 2B runs approximately 11 miles from the
Chowchilla Bifurcation Structure through Mendota Pool to Mendota Dam; Reach 3
runs approximately 23 miles from Mendota Dam to Sack Dam; Reach 4A runs 13.5
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miles from Sack Dam to the Sand Slough Control Structure; Reach 4B runs approximately 33 miles from the Sand Slough Control Structure to Bear Creek; and, finally,
Reach 5 runs 17.8 miles from Bear Creek to the confluence of the Merced and San
Joaquin Rivers.
A Reach-by-Reach summary of required improvements to meet the Restoration
Goal, along with an estimate of costs, prepared by CH2MHill is attached as Exhibit
4 to the Amicus Brief and included hereto.
Question no. 9: The proposed legislation submitted to Congress has a provision of
no private right of action. What prevents parties from filing suit for more water
after 2026? What prevents a third party from filing suit in reference to NEPA compliance, or other applicable laws, as feasibility studies are conducted on various aspects
of the Settlement?
Response no. 9: (i) The first question seeks information on what will prevent
parties from filing suit for more water after 2026. Although if a suit were to be filed
for more water after June 30,2026 it would be filed as a separate action (Settlement,
20(a)), nothing will prevent third parties from filing suit for more water prior to
2026. However, we believe there are various defenses to such an action based on
the comprehensive nature of the plan to be put in place by virtue of the Settlement
and related legislation. Given the breadth of the restoration plan, assuming it is implemented in a manner contemplated by the parties, we expect that a strong defense
would be available for the Exchange Contractors as well as the settling parties regarding any further action that might be undertaken on the San Joaquin River
above the confluence with the Merced River.
As for additional water after 2026, the Settlement provides the Restoration Flows
shall not be changed except by a written agreement signed on behalf of all the Parties, acquisition of water from willing sellers, or a final recommendation by the
SWRCB and a final Order of this Court. (Settlement, 20). If a Party seeks additional flows, the Settlement obligates them to move the Court to have the SWRCB
make certain findings relevant to the request for a change in the Restoration Flows.
The Court shall evaluate the request for a change in Restoration Flows in light of
the extent of the implementation and success of the Restoration Flows and other
restoration measures taken, the extent of success in meeting the Water Management Goal, the effectiveness of restoration measures provided for in the Settlement,
progress of the Settlement, and environmental and economic effects of the Restoration Flows. (Settlement, 20(d)).
(ii) Section 108 of the proposed legislation provides as follows:
Nothing in this Title shall confer upon any person or entity not a party to the
Settlement a private right of action or claim for relief to interpret or enforce the
provisions of this Title or the Settlement. This provision shall not alter or curtail
any right of action or claim for relief under any other applicable law.
In discussions with the settling parties, which included the United States Department of Justice, the parties agreed that the private right of action would not foreclose litigation based on NEPA, the Endangered Species Act, the Administrative
Procedures Act, (put citations after each statute), or other applicable federal laws.
The legislation will only prohibit litigation based on the San Joaquin River Restoration Settlement Act as well as on the Settlement Agreement itself. In fact, the water
users have not waived their right to challenge any action taken under the Settlement Agreement in the event that they believe that there is a violation of any of
the foregoing legal provisions. Further, pursuant to the Administrative Procedures
Act (APA), should the implementation of the Settlement or the Act be undertaken
in a manner that is arbitrary or capricious, and to the detriment of downstream
water users, it is more likely than not that the downstream water users will file
litigation that challenges the arbitrary and/or capricious actions of the Secretary.
We are pleased to have this opportunity to respond to your questions and to have
had the opportunity to testify before the subcommittee on water and power. In the
event that you or Mr. Nunes have any more questions, whether about our response
or the Settlement and related legislation, please do not hesitate to contact us.
Respectfully yours,
Steve Chedester
Executive Director
Lynn W. Skinner
Landowner, Wolfsen, Inc.
Enclosures
cc: The Honorable Dianne Feinstein
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The Honorable Barbara Boxer
The Honorable Dennis Cardoza
The Honorable Jim Costa
The Honorable Devin Nunes
The Honorable George Radanovich
Exchange Contractors Board of Directors
Tom Birmingham, Westlands Water District
Dan Nelson, San Luis and Delta Mendota Water Authority
Allen Short, San Joaquin Tributaries Agencies
Mr. RADANOVICH. Thank you, Mr. Chedester, I appreciate your

testimony.
And now hearing from somebody who actually lives in the subject
area that we are discussing, I want to introduce Ms. Lynn Skinner,
who is the owner, long-time farmer, of Wolfsen Farms in Los
Banos, California.
Ms. Skinner, welcome to the Subcommittee.
STATEMENT OF LYNN SKINNER, OWNER,
WOLFSEN FARMS, LOS BANOS, CALIFORNIA
Ms. SKINNER. Thank you. Thank you, Mr. Chairman and honorable Members of the Subcommittee. It is a real thrill to be here to
be part of this process. I am enjoying it all.
My name is Lynn Skinner, and I am a California farmer. For
four generations my family has farmed on the San Joaquin Valley,
and I expect that my grandchildren will participate in the family
farm, as well.
Our farm is located in Reach 4B of the San Joaquin River, which
is the area, of course, that is being looked at for reintroduction of
the Spring Chinook Salmon.
I am testifying today as a farmer who will be directly affected by
the legislation you are considering. I am here as a surrogate to
hundreds of other farmers along that river who will also be affected, especially those in Reach 4B. I am not here expressing opposition to, or favor for, the proposed settlement. I am, however, here
to go on record against making those farmers downstream of the
dam victims of the settlement.
How the legislation is crafted to a great extent affects how other
farmers and I will be impacted. I am here this afternoon to put a
face on, and a voice to, Reach 4B, to let you see and hear that we
are more, much more, than the number four and the letter B.
All of us in Reach 4B understand the significance of the effort
to restore fish to the river. However, when decisions are made I
hope you will keep me and the hundreds of other affected farmers
in mind, and the economic and moral contributions that we make
to this great nation.
On our farm we grow predominantly canning tomatoes and cotton, some alfalfa, with a few what we call flex crops. Our farm is
located adjacent to the San Joaquin River, in an area that may be
flooded by this fishery restoration effort.
Here is the problem. We farm in an area where there is high
groundwater. If water is allowed to go down that stretch of the
river, where it hasnt flowed for like 60 years, it is going to flood
adjacent lands, both from over-the-top flooding or from seepage.
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This last really wet season, we lost about 400 acres due to seepage.
And that was through the bypass.
Now, let me explain why this is the case. Historically, the San
Joaquin River never, ever flowed through just one channel at this
particular reach. It was what is known as a braided river, and that
is that many different channels flow through this very, very flat
ground.
When Friant Dam was built for flooding, and it was controlled,
farming operations commenced along those once-historic-flooded
areas. Over the past several decades the river channels have disappeared, leaving only a creek-size segment of the old channel that
can literally be waded across in wet times.
When it is wet, the water would otherwise have, when it is wet
now, the water flows through what is called the Chowchilla Bypass.
It is a manmade channel, authorized by the government, and built
for flood control.
Now, you have heard a lot about cfs. That is cubic feet per second, the standard water-flow measurement. For the purpose of this
new restoration flow down the old channel, remember that old
channel is about knee-deep, that is like filling 83,000 average-size
swimming pools, and dumping them into the river every day.
Now, one days flow would irrigate 3,000 acres of tomatoes, and
nearly 4,000 acres of melons. I am sure I dont need to remind you
that the estimates for the Spring Run Salmon is 500 fish annually.
That is compared to about 120,000 tons of tomatoes, and 2,400,000
boxes of melons. The economic variances are staggering.
Now, I am not opposed to fish. But we need to look at protecting
the farm ground. I urge you to use some logic in this equation and
give preference to an improved Chowchilla Bypass. It could be
modified to function as a fish corridor, rather than trying to construct a new, unnatural main channel. Because remember, there
was no main channel through here.
So basically what we are talking about is another manmade
channel on the San Joaquin. So in essence we have two manmade
channels going through that area.
While you certainly can restore part of the river upstream from
Reach 4B, attempting to restore this particular segment of the
river is unrealistic, illogical, and threatens the site of a huge foodproducing area, an economic-generating area, and it is expensive.
The estimates to restore the Reach 4B are about $400 million, or
40 percent of the entire project. Now, my dad and uncle paid well
under $200 an acre for our ranch. And now, however, this land is
being scheduled for permanent crops, and recent sales around have
been up to $10,000 for tree- or permanent-crop area, more if the
crop is already on the land, and less if it is row crop.
If we use the mid-price range of 10,000 acres and we apply it to
approximately 5,000 acres that would be needed for mitigation, we
are looking at a purchase price of like $50 million or more if more
land is ruined, on top of the $400 million for restoration costs. So
now we are at like $450 million for Reach 4B.
This, of course, does not include any cost of litigation should we
feel that the amount offered by the government to condemn property is adequate, and in turn we should choose to litigate the value
of our land.
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Now, Don and I just lived through a litigation due to insufficient
funding of a government project. And I can tell you nobody wants
that. It is imperative that an exact accounting of cost be determined before the project is started.
My second concern was about the Endangered Species Act, and
you have heard from my colleagues on that. However, I do have
one point, and that we feel is being overlooked, and that is the displacement of a huge habitat sanctuary that has developed naturally, and will be totally decimated, if it is turned back to nature.
All of us in Reach 4B have taken great care to see that the old
main channel is left entirely alone as a wildlife sanctuary. Numerous species would disappear if the river were to be mucked out. I
dont know if that is a technical term or not.
We are pleased with the progress that we have lived through this
week. I believe in compromise. I mean, I am a mom; I have to. It
is our hope that we will get the assurances that we need to move
forward with this. If not, I dont think it is fair that you should ask
us to give up all that we have worked for for generations, and simply accept any legislation that comes along and walk away from
our heritage.
Those of us in Reach 4B are living the American Dream. My father was a grandson of a German immigrant, and he wanted to be
a doctor, but he was too poor for all that schooling. So he became
a farmer, set the groundwork for the farm that we have today.
My husband put himself through school, alternating semesters
by working and going to school one. His first job was at 11 years
old, picking cotton in a sack, and he has worked every day since.
Our sons and daughters are actively working on our family farm.
The biggest problem we have with our grandchildren is keeping
them in school, because they want to be working on the farm.
The Bowles and the Nickel and the McNamara families and others all have similar rich pioneering histories in the area, only older
by a generation.
My daughter, Laurel, and I came and made this trip out here because it was important. It is important to Don and I, and it is important to her, and it is important to her brothers and her sisters
and her nieces and nephews: the fifth generation. It is their heritage. It is important enough to get me on an airplane.
I urge you to do whatever is in your power to help us help you.
Do what is logical, do what is economically sensible, and do what
is morally right.
Thank you. I would be happy to answer questions.
[The prepared statement of Ms. Skinner follows:]
Statement of Lynn W. Skinner, A California Farmer
Good Morning, Honorable Chairman Radanovich and honorable members of the
Sub-committee.
My name is Lynn Skinner and I am a California Farmer. For 4 generations my
family has been farming in the San Joaquin Valley and I expect that my grandchildren will also participate in family farming. Our farm is located in reach 4-B
of the San Joaquin River which is an area that is within that stretch of the river
that you are considering for reintroduction of Spring Run Chinook salmon.
I am testifying today as a farmer who will be directly affected by the legislation
you are considering. I am here as a surrogate for the hundreds of other farmers
along the San Joaquin River who will also be affected, especially those in reach 4B. I am not here expressing favor for nor opposition to the proposed settlement.
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However, I am here to go on record against making the farmers downstream of
Friant Dam into the victims of the Settlement. How the legislation is ultimately
crafted will determine the extent to which my fellow farmers and I are impacted
by the settlement. I am here today to put a face on, and voice to reach 4-B; to let
you see and hear that we are more, much more than the number (4) and the letter
(B)!
My testimony today addresses three issues, they are:
1. THE POTENTIAL FOR FLOODING IN REACH 4-B OF THE SAN JOAQUIN
RIVER AND THE USE OF THE REACH 4-B BY-PASS KNOWN AS THE
CHOWCHILLA BY-PASS.
2. THE NEED TO PROTECT FARMERS FROM THE POTENTIAL ADVERSE
IMPACTS OF INTRODUCING AN ENDANGERED SPECIES INTO THE SAN
JOAQUIN RIVER.
3. THE DISPOSITION OF SURPLUS LANDS THAT MAY BE ACQUIRED BY
THE SECRETARY OF THE INTERIOR FOR MITIGATION PURPOSES.
The farmers are the original environmentalists! Most of us in the farming community work on a daily basis with the environment and the environment sustains our
livelihood, simply put, if we dont take care of the environment (including land, air
and water) it doesnt take care of us!
I understand the significance of the effort to restore fisheries to the San Joaquin
River. Candidly, I do question whether it is worth $1 billion or thereabouts to restore somewhere between 50 and 500 fish to the river when we have so many other
environmental needs that could greatly benefit from this money or basic domestic
infrastructure projects. However, that is a decision that you and others will have
to make. But, when you make that decision, I hope you will keep me and the hundreds of other affected farmers in mind, and the economic and moral contribution
we make to this great nation.
1. THE POTENTIAL FOR FLOODING IN REACH 4-B OF THE SAN JOAQUIN
RIVER AND THE USE OF THE REACH 4-B BY-PASS KNOWN AS THE
CHOWCHILLA BYPASS.
On our farm we grow predominately canning tomatoes and cotton and alfalfa with
a few flex crops (crops that are good for the soil). Our farm is located adjacent
to the San Joaquin River in an area that may be flooded out by this fishery restoration effort. Here is the problem: We farm in an area where there is high groundwater. If water is allowed to flow along this stretch of the river where it hasnt
flowed for at least 50 years, it will flood out the adjacent lands.
Let me explain why this is the case. Historically, the San Joaquin NEVER flowed
in a single channel in that area of the valley. It was a braided river that is, it
formed many different channels as it spread over the flat valley floor. When Friant
Dam was built and the flooding of the area controlled, farming operations commenced along those once historically flooded areas. Over the past several decades
the river channels have disappeared, leaving only a creek-sized segment of river
that can literally be waded across by an adult. In wet times, the water that would
otherwise have flowed through that area now flows through the Chowchilla bypass,
a man-made channel authorized by the government and built for flood control because that area and others along the river were so prone to flooding.
I know from my discussions with others related to this restoration proposal, that
a type of beefed up levee is supposed to be constructed along Reach 4-B in order
to prevent flooding adjacent to the river. Just to give you an idea of the magnitude
of potential flooding, engineers tell me that as much as a quarter mile on each side
of the river could be flooded which would put 5,440 acres of agriculture out of business. Youve heard a lot about CFS (cubic feet per second, the standard water flow
measurement) For the purpose of this new restoration flow down the old channel,
(thats knee deep) thats like filling almost 83,000 average sized swimming pools per
day or 458 million cases of bottled water EACH day!! One days flow would irrigate
nearly 3,000 acres of tomatoes or nearly 4,000 acres of melons. Im sure I dont need
to remind you that the goal for Spring Run Salmon is 500 fish...annually! That is
1.3 fish a day compared to 120,000 tons of tomatoes or 2,400,000 boxes of melons.
The economic variances are staggering!
I urge you to put some LOGIC into the equation and give preference to the use
of an improved Chowchilla by-pass channel that could be modified to function as a
corridor for fish migration rather than trying to construct a new, un-natural, main
channel (remember the river never did flow through just one main channel in this
area, so basically what we are talking about here is another man-made by-pass) of
the San Joaquin, so we would have TWO man made bypasses running through the
same area!
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While you certainly could restore certain sections of the river above Reach 4-B,
attempting to restore this particular segment of the river is unrealistic, illogical and
threatens the site of a huge food producing area.
Secondly, in order to restore the 4-B reach and to protect the adjacent farmers,
estimates are that about $400 million or nearly 40% of the entire project would have
to be spent on this reach.
My Dad and Uncle paid well under $200. per acre for our ranch. Now, however,
this land could be scheduled for permanent crops and recent sales have been around
$10 thousand per acre, more if a permanent crop is already on it, less if it is row
crop farming. If the mid- price of $10,000 per acre were to be applied uniformly to
all 5,440 acres, that may need to be acquired, you are looking at a purchase price
of 54 million dollars; ON TOP of the 400 million for restoration costs; now were
totaling 450 million for restoration of reach 4-B, only!
This of course does not include any operation and maintenance cost nor litigation
costs that may arise if the farmers feel that the amount offered by the government
to condemn our property is inadequate and in-turn they choose to litigate the value
of their land. Don and I just lived through a litigation due to insufficient funding
of a government project and I can tell you, nobody wants that! It is imperative that
an exact accounting of costs is determined before any project is started.
2. THE NEED TO PROTECT FARMERS FROM THE POTENTIAL ADVERSE
IMPACTS OF INTRODUCING AN ENDANGERED SPECIES INTO THE SAN
JOAQUIN RIVER.
My second concern is that you are proposing to introduce an endangered species
into the river. I understand that there is some controversy over how to designate
these fish so that water and farming operations may continue in tandem. I dont
have a legal background in the Endangered Species Act; however, I understand
there may be ways to protect farming and water operations under the Act. I urge
you to include in this legislation some mechanism that will give us assurance that
our operations will not be shut down by having an endangered species in our backyard! We are already hosts to several endangered species and have learned to cohabitat with them. However, none of them are fish and Spring Run Salmon would
impose a whole new set of problems and operating concerns that we presently dont
have.
One other point that we feel is being over looked is the displacement of the huge
habitat sanctuary that has developed naturally and that will be totally decimated
if it is turned back to natural state. All of us in reach 4-B have taken great care
to see that the old, main channel is left entirely alone as a wildlife sanctuary. Numerous species would simply disappear if dredging were to occur.
3. THE DISPOSITION OF SURPLUS LANDS THAT MAY BE ACQUIRED BY
THE SECRETARY OF THE INTERIOR FOR MITIGATION PURPOSES.
My last item of concern is this: It is my understanding that the federal government and perhaps the state government may be acquiring some land upon which
to construct levees and some other facilities for this program. I also understand that
in the event too much land is acquired, that the surplus land may be disposed of.
I believe that it would only be fair if you would direct the Secretary to offer the
land back to the farmers from whom it was originally taken. On the other hand,
if the land is to be converted into parkland or other public use land, then the secretary should be required to include a condition on the sale of the land that protects
adjacent landowners from intrusion by the public.
We are being asked/told to accept this legislation. In order for us to do so, you
must give us some assurances that we wont be harmed. Dont ask us for unconditional, mindless support. If you want us to not oppose this legislation please work
with us and give us the reasonable protections we are asking for. If we are adequately protected, we will work with you, the fishery agencies and our local water
districts to help ensure the success of this program. If you wont agree to provide
us with some assurances, then I dont think its fair that you should expect us to
give up all we have spent generations working for and simply accept the impact of
this legislation, and walk away from our heritage!
Those of us in reach 4-B are representational of all Farmers and as such, we are
the epitome of all that is good and right about this Country. We are the history that
helped build our country into what it is today. We ARE the American Dream. My
father, grandson of a German Immigrant, wanted to be a doctor, but was too poor
to go to that much school so became a farmer and set the foundation for the organization we have today. My husband put himself through college by alternating semesters of school and work. His first job was at 11, picking cotton in a sack, and
has worked ever since. Our sons and daughters are actively working in our family
farm. The biggest problem we have with our grandchildren is keeping them in
school; they all want to be home, working on the farm.
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The Bowles and Nickel and McNamara families all have similar, rich pioneering
histories in the area, only older, by a generation!
We, the family farmers in reach 4-B, along with others along the river, represent
the history, the hope and the future of America through our economic and moral
contribution and I urge you to do whatever is in your power to help us help you.
Do what is logical, do what is economically sensible and do what is morally right.
Thank you for your attention. I would be happy to answer any questions.
[NOTE: The response to questions submitted for the

record by Ms. Skinner and Mr. Chedester can be found on
page 90.]
Mr. RADANOVICH. Ms. Skinner, thank you very much for your
testimony. It is very appreciated.
I am going to start off with questions. And I want to start off by
telling the paneland most of the panel is involved in negotiations
on third-party issues, with the settling parties as well, to try to
reach an agreementyou have done a great job.
And from what I understand, and this is my sense of it, and you
can correct me if I am wrong, the two controversies kind of swirl
around two issues, or the controversy is around two issues. And
that is, one is that the Reach 4B area can barely handled 50 cubic
feet per second. And then the second is the Endangered Species Act
issues, especially as it relates to Spring Run Salmon, but also some
relicensing issues.
And you, as well as others, have been, the last 24/36 hours, have
been trapped in Senator Feinsteins office, and then told to get an
agreement, and made a lot of progress yesterday. My understanding is that most of the issues on Reach 4B have been addressed to peoples satisfaction. And there has been even progress
on the ESA issue, especially as it relates to tributaries.
But there is the issue of endangered species and how it affects
Delta, pumping out of the Delta, that is, in my view, it may not
be the only issue, but probably the most contentious one that remains. And I think the key in getting an agreement that we can
get the third parties on board, and so therefore could move, is making sure that we get a resolution of that Delta ESA issue, while not
making this whole package a lightning rod for the Endangered Species Act, which will not enable us to be able to get it done in the
way that we would like to. I think it is in everybodys interest to
get this issue done and off the table as fast as we can.
Having that in mind, or keeping that in mind, I would like to get
panel members to suggest how they think that something like that
can be done. Do you have concepts? Do you have suggestions on
how to word part of this Act to address that issue, while still enabling us to get this thing moved through the House and Senate as
soon as we can?
We will start with you, Mr. Birmingham, and just go down the
line.
Mr. BIRMINGHAM. Well, Mr. Chairman, first I want to observe
that it is thanks to the efforts of every Member of this Subcommittee present today, and the Chairman of the full Committee,
as well as Senator Feinstein, that we have made the progress.
I have heard a variety or a number of you say this morning and
yesterday when we met that it is critical that to avoid the conflict
and the uncertainty that we have had with prior agreements, this
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language, this Act needs to be unambiguous. And I could not agree
with you more.
My understanding is consistent with yours: that we have made
progress on the 4B issue, that that issue has been resolved. I have
to say that that is not an issue for Westlands Water District, but
I certainly understand; and after the compelling testimony of Ms.
Skinner, have a much better understanding of that issue.
On the issue related to the Endangered Species Act, there was
significant progress with respect to developing language that would
provide protection for the tributary agencies. But as is always the
case when we get into the Delta, it becomes much more difficult.
Now, there are existing regulatory mechanisms that can be used
to provide the types of assurances that the CVP export contractors
would like to see, that the Department of Water Resources would
like to see for its State Water Project to contractors, that would not
exempt us from the Endangered Species Act. That is not what we
are seeking. But what we want to avoid is a circumstance where
we support the reintroduction of a species, but then we are punished for it, as well.
And yesterday a representative from NOAA Fisheries offered
some language concerning how some of that, those regulatory processes could be implemented, and we were satisfied with that. And
I am confident that if we sit down and talk further in good faith,
that we will be able to persuade all of the parties to accept it. It
is going to require your help, however, and the help of Senator
Feinstein.
Mr. SHORT. Thank you, Mr. Chairman. I dont have much more
to add to Mr. Birmingham, being in the same meetings and following him around for the last couple weeks. He has said it pretty
eloquently.
But I will say this. From that perspective that language has been
developed, at least on the FERC-related issue, along with the
ESAPs, which is 10[j] and 4[d], and we think that we can bring closure to those pieces. And we think we can do it in a fairly compressed time frame.
So I find it encouraging from that standpoint. To get it through
your process, with all due respect, Mr. Chairman, I have a hard
time getting stuff through my own process, so I cant offer you any
suggestion from that standpoint. But we are encouraged at least
from a language perspective, and its development.
Mr. ROBBINS. Thank you, Mr. Chairman. And I want to also second Toms indication to all of you. We very much appreciate all of
your leadership in getting this done, and apparently we are going
to continue it after this hearing is over in an effort to try to resolve
these matters.
I want to also echo we believe that we have at least core language now that may satisfy our Endangered Species concerns, at
least with respect to the San Joaquin River. And as Mr. Birmingham has indicated, there are tools we think we can bring to
bear for resolution of Delta issues, as well.
In addition, we have some language that we have proffered to
the National Marine Fisheries Service, and have a tentative approval, though everybody is still waiting for our final negotiating
sessions that would essentially make sure that the relicensing
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process at the Federal Energy Regulatory Commission doesnt
trump what we are trying to do here today.
Again, it wouldnt exempt us. It would just simply say that these
experimental conditions would stay neutral with respect to these
projects, and when the experiment was over or at the end of the
settlement period, the licenses could be reopened for Spring Run,
and if it were necessary at that point. So again, that FERC language is very narrow, getting us right down to just the protections
that the other parties are getting under the settlement agreement.
So assuming that language can move forward, I think you will
have our full support in trying to implement this as soon as possible.
Mr. CHEDESTER. With respect to Reach 4B, I do believe we have
come to at least conceptual closure. The language looks right. We
have all got to go back and sell it back to our home folks, but it
looks like it is worked out.
I do want to thank all of the delegation that was there yesterday.
They made some very clear points, and actually applied the sufficient pressure to make it happen.
I just dont want to forget that while the exchange contractors
and ESA arent big, we definitely support all of our colleagues here.
We have to have Endangered Species Act. We are on the mainstem
of the river. Lynns lands are along the river. We are going to need
Endangered Species Act protection all the way up the river, for all
of us.
And I will leave it to the experts on the language. That is why
we have good counsel.
Mr. RADANOVICH. Thank you. Thank you very much. Ms. Skinner, if you would like to?
Ms. SKINNER. Just a short comment. I would like to thank everyone that was there todayor yesterday, actually. It was a productive meeting. The pressure was applied when it needed to be. And
I do think we are feeling relatively comfortable.
I am not a technical person. I am a mom, so I am logical. So once
it is written, then I would like to read it.
Mr. RADANOVICH. Very good. All right. Well, thank you. I will
defer for other questions, but I would prefer to lock you all back
in the room as soon as possible so that you can finish this thing
out.
So I will defer to Mr. Pombo for questions.
Mr. POMBO. Thank you. And I know that there are a lot of concerns about the impacts on all of you of going forward with this.
And I think all of us understand that. And we all represent either
you or people very much like you in our own districts, and we understand.
I would say that at this point, it is a matter of drafting. It is a
matter of coming up with the right language. You heard, all of you
heard the previous panel and their testimony. They all pledge that
there would be no third-party impacts; that they all agreed that
the final document that would be produced, the final legislation
that would be produced, would not have the third-party documents.
And at this point it is up to us to come up with the right language
in order to do that. Hopefully nobody goes back on that, hopefully
nobody changes their mind after they testified before a
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Congressional hearing. But you did hear them all pledge that there
would be no third-party impacts. And I think this committee is
committed to doing that in order to carry out the settlement.
I think we also know at this point that this is something that
we want to do. It is something that I believe is the right thing to
do, in terms of restoring the river and doing everything that we
possibly can to restore the fishery on that particular river.
But you have my commitment and the commitment of this committee that, as we move forward with legislation, that we will do
everything we possibly can to make sure that there are no thirdparty impacts, because of what we heard yesterday, the meetings
we had, and the testimony that you heard earlier today where we
had a pledge from all of the signatories on that agreement that
they would do that, and that they agreed to do that.
I know that some people like to try to dance around their answers a little bit. But I think after they were asked the same question five different times, finally they all answered that they were
committed to that.
So I am very much in favor of doing this and moving forward.
And I look forward to working out the final language that all of you
can agree to.
Mr. RADANOVICH. Thank you, Mr. Chairman.
Mr. BIRMINGHAM. Thank you, Mr. Chairman.
Mr. SHORT. Thank you, Mr. Chairman.
Mr. POMBO. Well, thank you.
Mr. RADANOVICH. I am going to recognize Mr. Cardoza very
quickly.
Mr. CARDOZA. Thank you, Mr. Chairman. This is a question for
the entire panel. And before I say this, I want to thank in particular Lynn Skinner for coming out and giving such eloquent testimony. I was out of the room, but I didnt miss it. And I appreciate
very much your passion and your honest conviction on this issue.
The first panel was asked the question what would happen if the
settlement does not go forward. I would like to ask each of you to
briefly, because we have limited time, tell us what would happen
if a settlement goes forward without the third-party protections
that we are trying to implement in the legislation.
Mr. BIRMINGHAM. The very brief and simple answer to that, Mr.
Cardoza, is that if the settlement goes forward without unambiguous protection in the authorizing Act to prevent third-party impacts, there will be endless litigation over its implementation. I can
guarantee that if the Secretary of Commerce makes a decision to
reintroduce Spring Run without the protections we need,
Westlands Water District will do everything that it can judicially
to prevent that from happening, because it will only take more
water away from us.
And again, I want to make the point that we support, as does
the Chairman of the full Committee, this program. We think it is
a great idea. But we should not be punished by reduced water supplies as a result of a decision made to reintroduce a species, a species that we had absolutely nothing to do with its extirpation.
Thank you.
Mr. CARDOZA. Mr. Short?
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Mr. SHORT. Well, I will echo that, from that standpoint. We will
fire up our attorneys just as much as Mr. Birmingham and Mr.
Robbins will fire up himself. There is an issue there.
In terms of that, and if there is potentially more water taken
from our organization or our Tributaries Association, that is a
problem. And as I have indicated to you before, that there is a second bite at the apple for us when all of us go and get relicensed.
We will get another opportunity
Mr. CARDOZA. I am going to ask a question about that in the second round.
Mr. SHORT. I figured you would. But there is another bite at the
apple from that perspective, as well. So we will get hit twice if, in
fact, we dont have the protections in play.
Now, there are other issues if the thing goes forward and there
is nowell, I will leave it at that, because it is the judges, you are
not asking that question. So I will just simply say we will fire up
the attorneys, and we will see what happens.
Mr. CARDOZA. Mr. Robbins?
Mr. ROBBINS. That is an interesting question, because we dont
know. There has been some speculation about what would occur in
the absence of these mitigation measures, because we dont know
what regulatory actions would or would not be taken.
But let me just answer it by saying if no other actions are taken,
Section 4[d] of the Endangered Species Act currently does not have
an exemption or an exception for salmon on the San Joaquin River.
So we would potentially be subject to take limitations if those fish
began to
Mr. UPTON. Mr. Robbins, I do hate to interrupt you, but we are
down to five minutes on a vote. So unless you can finish in like 30
seconds, we might want to hold the answer to that until we get
back.
Mr. CARDOZA. We can just reengage when we come back?
Mr. RADANOVICH. Yes.
Mr. CARDOZA. Thank you.
Mr. RADANOVICH. But I will say that I beat every other Member
back here after the last series of votes. And if you want to ask
questions, you have to get back here soon.
And with that, we will recess. I am sorry, there are three votes,
but we have to go do our duty. Thank you.
[Recess.]
Mr. CARDOZA. I think we were at Mr. Robbins. And the question
for the entire panel was, the first panel was asked the question
what would happen if the settlement does not go forward. I would
like to ask each of you to tell us what would happen if the settlement goes forward without having the qualifying language that we
need in the Congressional Bill that would protect the third parties,
as everyone has stated they want to do.
Mr. ROBBINS. And once again, let me just reiterate. You know,
we dont know all the answers to that because there are some regulatory uncertainties that agencies will have to consider.
But nevertheless, under the current regime, without change what
will happen, of course, is that the Spring Run Salmon would be introduced into the system. It would, our biologists tell us, undoubtedly, to the extent that the experiment is succeeding, lead to the
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propagation of Spring Run on the tributaries, as well, which would
put our projects under the Endangered Species Act relative to that
fish. And in the event that we were unable to obtain take exemptions, significant water costs. Remember, we operate our systems
for Fall Run, which means that we have water from the Fall
through the Spring to support Fall Run Salmon.
The Spring Run Salmon actually are all throughout the year, but
particularly difficult to sustain in the summertime down in the
lower end of the Valley, where temperatures soar. So the potential
for significant water costs, huge water costs, power losses, and economic difficulties for the districts, for all of the parties all along the
river are enormous without environmental protection.
Mr. CHEDESTER. Wow, I dont know if I can add any more to
that. But I think the clear answer is that if this begins to move
forward to settlement without the appropriate mitigations for the
third-party impacts, we are going to have to come back with the
exchange contractors and I hope the rest of the panel I am hearing,
and say dont support this legislation, and dont let it go forward
without it.
There will be impacts to us. We will have severe economic impacts. As mentioned earlier, there will be impacts with respect to
endangered species. And we just, you know, it is almost
unfathomable. Besides, I think you would be violating the settlement agreement, because that is third-party impacts. So I just
dont know how it can go forward without that being addressed.
Ms. SKINNER. On a personal note, we would probably be under
water, flooded, either by top or by seepage. Again, it is just absolutely flat out there, like a table. And if you pour a bucket of water
on a table, it is going to run everywhere. Which would mean we
couldnt plant, which would mean we couldnt harvest, which would
mean we couldnt pay our operating loan off, which would mean the
bank would foreclose, which would meanI mean, it would be economic chaos.
Mr. CARDOZA. And just as a follow-up to your answer, Lynn, because I think it is very appropriate. How many acres would you say
might be affected? Do you have any guesstimate? Because I have
met with folks. I know that there is a myriad, and not all of them
today would even know that they are being impacted today. But
just your guess.
Ms. SKINNER. Right. In Reach 4B only?
Mr. CARDOZA. Well, that is where you have your most experience.
Ms. SKINNER. Oh, how many acres are weI dont know.
Mr. CHEDESTER. Probably 10,000 acres.
Mr. CARDOZA. Up to 10,000 acres?
Ms. SKINNER. Yes, in that area.
Mr. CARDOZA. So close to what we set aside in the Headlands
Forest Project, which was 10,000 acres of forest, we could be potentially taking that out of production in the Central Valley if we dont
do the right
Ms. SKINNER. Absolutely.
Mr. CARDOZA. Go ahead, go ahead.
Mr. CHEDESTER. That is just in the Reach 4B. There are other
lands upstream that is going to be impacted, also. So it is broader,
it is larger than that.
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Mr. CARDOZA. OK.
Ms. SKINNER. Yes, you know what, 4B is larger than that, too.
Mr. CARDOZA. Mr. Robbins, and we may not have enough time
to answer this entirely, I want to ask the question of you and Mr.
Short to further explain the FERC language and whatbecause I
dont want the Committee to go through this process without fully
understanding the necessity on the FERC point.
Mr. ROBBINS. I think it is critical to understand how the Endangered Species Act and the Federal Power Act, and the agencies that
are responsible for those, intermingle.
As an example. Section 18 of the Federal Power Act provides, in
the case of anadromous fish, of which, of course, the Spring Run
is one, power to the National Marine Fisheries Service to provide
absolute conditions on our relicensing. And those conditions can be
fairly draconian.
So if we have an experimental fish in the system, under these
kind of conditions, and our licenses are being tagged with fish passage issues that could cost millions of dollars or tens of thousands
or 100,000 acres of water to support cold water in the summertime
while we look at this experience, then the Federal Power Act would
end up trumping whatever protection we got under ESA.
So in order for the ESA protection to mean anything then in the
hydro projects, it has also got to have that protection. We are not
asking for a complete pass; we are just saying reserve it. And at
the end of the experiment, to the extent we need to make adjustments for Spring Run, we will do that.
Ironically, and I do need to clarify this, it is not just Section 18,
but believe it or not, the Section 10[j] of the Federal Power Act, as
well. Now, that is different than 10[j] of the ESA, so as we go forward we will talk about those more.
Mr. RADANOVICH. Thank you. Mr. Cardoza, you are out of time.
You can come back if you want.
Mr. Nunes.
Mr. NUNES. Thank you, Mr. Chairman. I would like to ask
maybe theI know that Mr. Birmingham is a lawyer, and I think
Mr. Robbins is a lawyer, I am not sure. Are there any other lawyers up there?
I would like to discuss, would this settlement, in your opinion,
what really happens in terms of future litigation on the Friant
water users? And I would have liked to ask this question of Mr.
Upton, but we didnt have time. But, you know, what still hangs
out there under this current agreement?
I guess we will start with Mr. Birmingham.
Mr. BIRMINGHAM. Well, the reality, Mr. Nunes, is that this settlement agreement and the legislation authorizing implementation of
the settlement agreement would resolve the claims brought in the
United States District Court for the Eastern District of California
by the Natural Resources Defense Council and other entities
against the Secretary of the Interior in connection with his operation of Friant Dam. And an alleged violation of Section 5937 of
the Fish and Game Code.
The implementation of this legislation in the settlement would
not prevent anyone else from walking down to the San Joaquin
River, wetting a fishing line, establishing standing, and then
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bringing another action next week, or the week after this legislation is signed, another action under Section 5937 of the Fish and
Game Code.
Now, there is a simple amendment that could be offered to address that. Congress has the ability, the authority to prescribe the
jurisdiction of United States District Courts. And in order to sue
the United States, it has to be in District Court.
To provide greater certainty concerning the commitment to the
settlementand all of the settling parties have said we are committed to this settlement. Well, to provide greater certainty, one
thing that could be done would be to amend the Restoration Settlement Act to provide that except as to enforce the terms of this settlement, the United States District Court is deprived of jurisdiction
to entertain any claim brought against the United States related
to Section 5937 of the California Fish and Game Code, as it relates
to the Bureau of Reclamations operation of Friant Dam. That
would make sure that, at least during the pendency of this settlement, no one else would be able to come into District Court and
upset it by filing another 5937 loss.
Mr. NUNES. That would protect Friant in the future.
Mr. BIRMINGHAM. Yes, it would.
Mr. NUNES. Mr. Robbins, do you agree with that?
Mr. ROBBINS. I do. But I also think there is another outstanding
issue.
Without the environmental protections we have been talking
about from ESA, it is my opinion that Friant has some, the area
has some exposure to these same issues. For instance, notwithstanding the fact that the flow caps are in place, this is a settlement of a fish and game proceeding. It is not a settlement of ESA
proceedings particularly.
Now, I do know that the parties consider and have the opinion
that the biological opinions that they have been able to put together suggest that they can have a successful experiment. But
what happens if this fishery is reintroduced into the Upper San
Joaquin, and that doesnt happen; and now new parties are filling
these seats that dont have this kind of recollection, and under the
Endangered Species Act simply take a look at what that Federal
project is doing, and suggest more waters taken?
There is not a guarantee that the Endangered Species Act wont
trump these caps at some point in the future. And that, in the absence of the 10[j] protection and of the 4[d] protection we have been
talking about, I think that they are potentially exposed, as well.
Mr. NUNES. In relation to, there were some questions on the first
panel about third-party impacts in terms of Delta pumping. And
maybe this is a good question for both of you again.
Ms. Napolitano, I wish she was here, but there was a question
about, you know, how does it impact Southern California. And
Tom, or Mr. Birmingham and Mr. Robbins, could you answer that
real quickly, in our one minute that we have here?
Mr. BIRMINGHAM. Yes, Mr. Nunes. There are two potential impacts. One is a detriment, one is a benefit.
Now, theoretically there are some water quality improvements
that will result from the implementation of this settlement.
However, in terms of complying with the water quality objectives
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established by the State of California for the protection of beneficial uses of that water, the benefits derived from the settlement
in terms of water quality improvement in the Delta are marginal,
very marginal. And I could explain the reasons for that.
In terms of water supply, unless there is some Endangered Species Act protection in the Delta, if the Spring Run that are expected to be reintroduced show up at the Harvey O. Banks pumping plant, there will be limitations imposed on the pumping rates,
and there would be a water supply reduction for all state contractors.
And I note that in this proceeding, there is no representative of
any state contractor, but there are potential effects on the State
Water Project.
Mr. NUNES. Thank you. And thank you, Mr. Chairman. I know
my time is up.
Mr. RADANOVICH. Thank you, Mr. Nunes. And we are wrapping
up this hearing. So if there are no other questions.
Mr. NUNES. Well, I do have one more.
Mr. RADANOVICH. If you can be brief, sure.
Mr. NUNES. OK. And I thought Mr. Cardoza was going tolet
me just, let me throw this out there, in terms of the settlement requires legislation to provide the Secretary the authority to proceed.
If the parties were to return to court, what are the boundaries of
the judges authority without Congressional authorization?
This is just an example. If the judge mandated the release of
500,000 acre-feet of water, then how is this accomplished if the
downstream improvements require Congressional authorization?
Mr. Birmingham.
Mr. BIRMINGHAM. Well, I have not done extensive legal research
on the question, but I think Mr. Upton himself alluded to the answer to this.
The judge has said to the parties the tools that I have are very
blunt. And as an example, I cant imagine a circumstance under
which a court is going to order the release of water if it is going
to result in flooding. The District Court does not have the power,
the judicial power, to order the Secretary of the Interior to undertake an action that the Secretary doesnt have statutory authority
to implement.
And so it is really unclear what the court could do. The court
could not order the Secretary of Commerce to reintroduce Spring
Run into this river. That would be an exercise of discretion, and
the case law is very clear that a District Court does not have the
authority to describe to a member of the Executive Branch how to
exercise discretion.
So there are lots of things that arent being undertaken in connection with the settlement that the District Court simply has no
power to impose as part of a judgment.
Mr. NUNES. Mr. Robbins.
Mr. ROBBINS. Yes. It is hard for me to imagine that the judge
would be ordering flows into a system that wouldnt in fact accomplish the goal. This settlement has to do with a Fish and Game settlement intending to put water below the Friant Dam in sufficient
quantities to have a healthy fishery, which would include Spring
Run.
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Without the intentional reintroduction of Spring Runand
again, I would echo Mr. Birminghams indication that we dont believe the judge has the authority to order the Secretary to do the
reintroductionwhat you would get is a lot of water going down
the wasteway during the summertime and during the fall and
spring post-flows. Some fish probably. We dont have a clue as to
how. You would have a whole lot of damage to the landowners, to
the levee systems. Nothing the judge would do would take out their
potential Court of Claims proceedings.
However, I have, during my 30-year career, been wrong on more
than one occasion of what I think a Federal judges power is. And
so I would suggest to you that this particular Federal judge might
do just exactly what we have been talking about.
Mr. NUNES. Thank you. Just to clarifyand I want to ask the
lawyers this question, alsothis is really a precedent-setting action
that the parties have come and asked the Congress to do this. And
there was a comparison earlier to the agreement down in Southern
California dealing with Indian Tribes.
This is much different than that. And I would like both of your
takes on the precedent that this sets, that this sets bringing it to
Congress asking Congress how to act, and how it compares to the
example that was given earlier.
Mr. BIRMINGHAM. In responding to these questions, I dont want
to create the impression among any of the people listening that the
Westlands Water District is opposed to this settlement. I think, as
Mr. Cardoza indicated, it is critical that we examine these issues,
so we can make sure we know how it is going to be implemented.
The reference was made by Mr. Candee to the Torres-Martinez
Settlement Act. And he said that was comparable to what is being
done here. That involved an authorization to settle pending litigation, and the total amount of the settlement was $14 million, $10
million of which was going to come from the government.
I am informed by one of our lawyers who was actually involved
in those negotiations and the settlement that that was, a Member
of Congress was involved in the negotiation, and actually was involved in the drafting of the legislation. Here, the legislation has
come to Congress as an exhibit to the settlement.
In that case, it took a number of Congresses to approve the settlement because of concerns that had been raised by a particular
senator from the State of Nevada. And so Mr. Candee is right in
a technical sense; there Congress authorized the implementation of
a settlement. But that settlement was fundamentally different than
this settlement, where, number one, you are being asked to authorize a program the costs of which are uncertain, the effects of which
are uncertain. And so there are, I think, some fundamental differences.
Mr. NUNES. Thank you, Mr. Birmingham. Thank you, Mr. Chairman.
Mr. RADANOVICH. The Chair is reducing the time to two minutes
per round. Mr. Cardoza.
Mr. CARDOZA. Yes. I would like to follow up and allow Mr. Short
to answer the question I asked previously with regard to the FERC
reauthorization challenge.
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Mr. SHORT. Thank you, Congressman. I dont have much more to
say. Ken, I think Ken outlined the procedural process fairly clearly.
And that is on point. I think his answer was just fine.
My only concern about the FERC issue, as I have indicated before, is that we dont get hit twice: once during this process, and
then again during our relicensing process, for an experimental
amount of fish population. It just doesnt make sense.
Mr. NUNES. Thank you.
Mr. RADANOVICH. Mr. Costa.
Mr. COSTA. Thank you, Mr. Chairman. Mr. Birmingham, as it relates to the Federal contractors, do you have any belief that the recirculation effort under the settlement will impact your ability to
continue to allocate your water for the Westlands Water District?
Mr. BIRMINGHAM. The simple answer is that it could. Because
the settlement agreement and the legislation authorizing implementation direct the implementation of a recapture and recirculation program.
And by itself, that could be interpreted as meaning that the Secretary of the Interior should displace existing uses of Tracy Pumping Plant in order to fulfill or to accomplish the water supply goals
of the settlement agreement.
Now, I have been told repeatedly by the settling parties that that
is not their
Mr. COSTA. It is not the intent, right.
Mr. BIRMINGHAM. And they have been very, very gracious in saying let us put language in the settlement, or excuse me, authorizing legislation that says that this recirculation will not displace
existing uses. And we proposed that as an amendment.
Mr. COSTA. And that should be included in some fashion, it
seems to me, because of the potential impact. And I would believe
that, as point of fact, that it also potentially could impact state contractors, as well. And I am very concerned about that point as well,
and I think there ought to be consideration taken into account for
state water contractors that share the same plumbing system in
the Delta.
Mr. BIRMINGHAM. My understanding from the Department of
Water Resources in the State of California is they have raised this
issue in connection with the ongoing discussions concerning potential amendments, because that is a potential impact on the state
contractors as well.
Mr. COSTA. I want to make one final point, but first I want to
commend Ms. Skinner, who I have had the pleasure to work with
over the years and know of her familys active involvement in California agriculture for generations. And you are a great spokesperson always, and I think the passion and the detail that you
shared with the Committee today is very important for the purpose
of dealing with the issues for those farmers who are impacted in
Mr. Cardozas district.
The point I want to make is the following. The Chairman has admonished us that he wants to get the Committee concluded so that
you can go back to the table and work on the efforts as it relates
to the third-party agreements and the language you are trying to
work out.
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110
I want you to do that, too. And I think we all are very much interested in implementing this agreement for all the right reasons.
We have all stated that. I, too, share that, and I want you to do
your very best in your efforts, including Mr. Hal Candee and the
environmental groups that he represents.
But let me tell you, Mr. Chairman, and I have suggested this to
the Chairman of the Policy Committee as well, that my view is, in
terms of where I am coming fromand I cant speak obviously for
any other Memberis that if you dont reach an agreement as it
relates to the third-party impacts, whether it is this afternoon or
tomorrow or whatever remaining time that you are allowed to
reach an agreement, I believe it will then be incumbent to do
everything I can do, and hopefully with my colleagues, to write
third-party protections into the law.
So I think the challenge is this, in my view. You guys work it
out, Mr. Candee and company and with the others. We are going
to, I am going to try to do everything I can to make sure that it
is worked out for the satisfaction of those impacts that I have outlined in my letter, and that has been submitted to the record.
Thank you very much, Mr. Chairman.
Mr. RADANOVICH. Thank you, Mr. Costa. Any other questions?
Mr. CARDOZA. I would just like to associate myself with Mr.
Costas remarks.
Mr. RADANOVICH. When do you go back to the table? This afternoon, like right now?
Mr. CHEDESTER. Half an hour.
Mr. RADANOVICH. All right. Ladies and gentlemen, thank you for
your testimony. It was very valuable to the issue. And let us get
back to work and get this job done.
Thank you.
[Whereupon, at 2:37 p.m., the Subcommittee was adjourned.]
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House Hearing, 109TH Congress - The San Joaquin River Restoration Settlement Act

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House Hearing, 109TH Congress - The San Joaquin River Restoration Settlement Act

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THE SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT

SUBCOMMITTEE ON WATER AND POWER

Thursday, September 21, 2006

Serial No. 109-63

U.S. GOVERNMENT PRINTING OFFICE

For sale by the Superintendent of Documents, U.S. Government Printing Office

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Dale E. Kildee, Michigan

Steven J. Ding, Chief of Staff

SUBCOMMITTEE ON WATER AND POWER

Raul M. Grijalva, Arizona

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Hearing held on Thursday, September 21, 2006 ...................................................

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OVERSIGHT HEARING ON THE SAN JOAQUIN

The Subcommittee met, pursuant to call, at 10:09 a.m. in Room

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STATEMENT OF THE HON. GRACE F. NAPOLITANO, A

Ms. NAPOLITANO. Thank you, Mr. Chair. I first want to recognize

Mr. POMBO. Thank you. I want to congratulate the Chairman for

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Mr. MILLER. Thank you, Mr. Chairman. And I want to commend

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Mr. RADANOVICH. Thank you, Mr. Nunes. Mr. Cardoza.

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Mr. CARDOZA. Thank you, Mr. Chairman. I would like to start

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Mr. RADANOVICH. Thank you, Mr. Cardoza. Mr. Costa.

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into further litigation. I dont believe that furthers anybodys interest.

Mr. UPTON. Thank you, Congressman. We appreciate your leadership on this.

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