H.R. 23 — what changed

Section 3402 of the Central Valley Project Improvement Act (106 Stat. 4706) is amended—

changed “(g) to ensure that water dedicated to fish and wildlife purposes by this title part is replaced and provided to Central Valley Project water contractors by December 31, 2018, at the lowest cost reasonably achievable; and

“(h) to facilitate and expedite water transfers in accordance with this Act.”

changed The Secretary of In the Interior, in collaboration event that the Bureau of Reclamation or another Federal agency initiates or reinitiates consultation with the Sacramento Water Forum, shall expedite evaluation, completion U.S. Fish and implementation Wildlife Service or the National Marine Fisheries Service under section 7(a)(2) of the Modified Lower American River Flow Management Standard developed by Endangered Species Act of 1973 (16 U.S.C. 1536(a)(2)), with respect to construction or operation of the Central Valley Project and State Water Forum in 2015 to improve water supply reliability for Project, or any part thereof, the State Water Project contractors and the Central Valley Project American River water contractors will be accorded all the rights and resource protection responsibilities extended to applicants in the lower American River during consecutive dry years under current and future demand and climate change conditions.consultation process.

added “10002. Purpose and findings

added “(a) Purpose—The purpose of this part is to authorize implementation of the Settlement.

added “(b) Findings—Congress finds that since the date of the enactment of this Act, the following conditions now persist with regard to implementation of the Settlement:

added “(1) Millions of dollars of economic damages have occurred due to seepage from rivers flows and other impacts to third parties affected by the Settlement and San Joaquin River Restoration Program and such impacts will continue for the duration of the Settlement and Restoration Program implementation.

added “(2) Estimated costs of implementing the Settlement have more than doubled from the initial estimates for implementing the Settlement, from a high-end estimate of $800,000,000 to more than $1,700,000,000, due to unrealistic initial cost estimates, additional, unanticipated cost increases related to damages to land from seepage and to infrastructure from subsidence, and from increased construction costs to complete channel improvements, and other improvements not originally identified, but anticipated in the Settlement as necessary to implement the Restoration Goal.

added “(3) Achievement of the Settlement’s Water Management Goal, to reduce or avoid water supply impacts to Friant Division long-term contractors, including the Friant-Kern Canal and Madera Canal capacity restoration projects have not progressed and are likely impossible given available and likely future funding and regulatory constraints.

added “(4) Implementation of the Settlement’s Restoration Goal has already fallen short of the schedule agreed to by the Settling Parties and Congress, which required the reintroduction of Spring-run and Fall-run Chinook salmon in the river by December 31, 2012, and the majority of Paragraph 11 improvements construction to be complete by December 31, 2013, with the remainder of the paragraph (11) improvements to be completed by December 31, 2016, neither of which deadlines have been met and the Secretary has now made findings that such improvements will not be completed until 2030 at the earliest and likely beyond that timeframe, which schedule assumes full funding of the Restoration Program, which has not occurred.

added “(5) Catastrophic species declines in the Sacramento-San Joaquin Delta and other changed conditions have affected the Friant Division’s water supply in ways unimagined during the time of the Settlement’s signing, resulting in additional reductions in water supply for the Friant Division beyond what was agreed to in the Settlement.

added “(6) Recent scientific assessments of likely future climate change suggest that no amount of additional flow in the San Joaquin River will sustain Spring-run Chinook salmon, one of the target species for maintaining a self-sustaining population below Friant Dam.

added “(7) In consideration of existing conditions, it is not reasonable, prudent and feasible to implement the Settlement as originally authorized.”

added “(4) The term Exchange Contractors means San Joaquin River Exchange Contractors Water Authority, whose members are the Central California Irrigation District, Columbia Canal Company, the Firebaugh Canal Water District, and the San Luis Canal Company.

added “(5) The term Governor means the Governor of the State of California.

added “(6) The term Gravelly Ford means the Gravelly Ford gaging station in the San Joaquin River located at approximately River Mile 230.

added “(7) The term Restoration Area means the San Joaquin River between Friant Dam and the Merced River confluence, and generally within 1,500 feet of the centerline of the river.

added “(8) The term Restoration Flow means the hydrograph flows (as provided in paragraph 18 and exhibit B of the Settlement), buffer flows of up to 10 percent of the applicable hydrograph flows, and any additional water acquired by the Secretary of the Interior from willing sellers to meet the Restoration Goal of the Settlement.

added “(9) The term Restoration Fund means that fund established by this part.

added “(10) The term Sack Dam means a low-head earth and concrete structure with wooden flap gates that diverts San Joaquin River flows into the Arroyo Canal at approximately River Mile 182.1.

added “(11) The term Warm Water Fishery means a water system that has an environment suitable for species of fish other than salmon (including any subspecies) and trout (including all subspecies).

added “(12) The term third party means the Exchange Contractors or any member thereof, current or former members of the San Joaquin Tributaries Authority, and current or former members of the San Luis and Delta Mendota Water Authority.”

added “(2) Conditions for release—The Secretary is authorized to release Flows—

added “(A) if all improvements and mitigation measures are completed or implemented, including all actions necessary to mitigate impacts on landowners, water agencies, and water users; and

added “(B) if such Flows will not exceed existing downstream channel capacities.

added “(3) Seepage impacts

added “(A) The Secretary, in implementing this Act, shall not cause material adverse impacts to third parties. The Secretary shall reduce Flows to the extent necessary to address any material adverse impacts to third parties from groundwater seepage or levee instability caused by such flows identified based on the monitoring program of the Secretary. Notwithstanding the foregoing, the Secretary shall not directly or indirectly cause groundwater to rise above 10 feet below ground surface and shall provide at least 10 feet below ground surface as a minimum threshold elevation for groundwater beneath any fields where permanent or other deep rooted crops are grown, and at least 6 feet below ground surface as a minimum threshold elevation for groundwater beneath any fields where annual or shallow rooted crops are grown. These minimum thresholds shall be adjusted yearly based upon information provided by individual landowners regarding the minimum threshold that they will need in order to grow their crop(s) that year. If during the course of the year the landowner informs the Secretary that detrimental seepage is being experienced or is reasonably likely to occur despite the adherence to the minimum threshold, the Secretary shall reduce Restoration Flows to a volume sufficient to reduce seepage impacts by reducing the occurrence of groundwater to a non-damaging level below ground surface.

added “(B) If Flow reduction alone is not sufficient to mitigate for seepage impacts the Secretary shall mitigate by real estate transaction or installation of physical measures, whichever option is requested by the landowner.

added “(C) Any water that seeps onto private property shall thereupon become the property of that landowner if the landowner takes control of the water including by re-diverting it to the San Joaquin River. If seepage water is returned to the San Joaquin River it shall meet applicable water quality requirements.

added “(4) Temporary fish barrier program—Using funds otherwise available from the San Joaquin River Restoration Fund if necessary, the Secretary is authorized to make improvements to the Hills Ferry Barrier or any replacement thereof in order to prevent upstream migration of any protected species to the restoration area. The Secretary is further authorized to work with the California Department of Fish and Wildlife for the improvement or replacement of the Hills Ferry Barrier in order to prevent the upstream migration of any protected species. If third parties south of the confluence with the Merced River are required to install their screens or fish bypass facilities in order to comply with the Endangered Species Act of 1973, the Secretary shall bear the costs of such screens or facilities, except to the extent that such costs are already or are further willingly borne by the State of California or by the third parties. Expenditures by Reclamation are non-reimbursable. Any protected species recovered at the Hills Ferry Barrier or in the Restoration Area or any river or false pathways thereto that is to be relocated outside of the Restoration Area shall only be relocated to an area where there is an established self-sustaining population of that same genotype or phenotype.”

added “(j) San Joaquin river exchange contract and related—Subject to section 10006(b), nothing in this part shall modify or amend the rights and obligations under the Purchase Contract between Miller and Lux and the United States including without exclusion of others, any right to enforce the power contracts identified in the Purchase Contract, the Second Amended Exchange Contract between the United States, Department of the Interior Bureau of Reclamation and Central California Irrigation District, San Luis Canal Company, Firebaugh Canal Water District, and Columbia Canal Company. Prior to releasing any restoration flow, the Secretary shall determine that such release will not affect its contractual obligations to the Exchange Contractors.”

added “(b) Acquisition of property—The Secretary is authorized to acquire property solely through purchase from willing sellers any property, interests in property, or options to acquire real property needed to implement the Settlement authorized by this part. The Secretary shall not acquire property through the exercise of eminent domain unless the owner of said property does not object to an eminent domain action.

added “(c) Disposal of property—Any property or interests therein acquired by the Secretary and for which the Secretary determines that the property or interest therein is no longer needed to be held by the United States for the furtherance of the Settlement, shall be first offered for repurchase to the prior owner of the property from whom the United States acquired the property and at the same price for which the United States acquired the property unless it is demonstrated that the property has decreased in value in which case the Secretary shall sell the property back to the prior owner at the decreased price. If the prior owner does not want the property, the Secretary shall sell the property on the open market.”

added “(e) In general—Sections 5930 through 5948 of the California Fish and Game Code and all applicable Federal laws, including this part, as amended by the Gaining Responsibility on Water Act of 2017, and the Stipulation of Settlement (Natural Resources Defense Council, et al. v. Kirk Rodgers, et al., Eastern District of California, No. Civ. S–88–1658—LKK/GGH), shall be satisfied by implementation of the Settlement as provided in section 10014(b) or the plan provided in section 10014(a) of the Gaining Responsibility on Water Act of 2017.

added “(f) Compliance with existing friant division contracts—Congress hereby finds and declares that compliance with the provisions of this Act by Friant Division Contractors shall fulfill all requirements for compliance with this part, contained in contracts between the Secretary and Friant Division Contractors.”

added “(3) Limitation—Except as provided in the Settlement, to the extent that costs incurred solely to implement this Settlement would not otherwise have been incurred by any entity or public or local agency or subdivision of the State of California, such costs shall not be borne by any such entity, agency, or subdivision of the State of California, unless such costs are incurred on a voluntary basis. Any appropriations by Congress to implement this part shall be on the basis of line item authorizations and appropriations and shall not be part of the programmatic funding for the Secretary or the Bureau of Reclamation.”

added “(f) Reach 4B—No Restoration Flows released shall be routed through section 4B of the San Joaquin River. The Secretary shall seek to make use of modified and/or existing conveyance facilities such as flood control channels in order to provide conveyance for the restoration flows. Congress finds that such use of multi-use facilities is more economical and cost-effective than seeking to restore certain sections of the San Joaquin River. The Secretary shall provide non-reimbursable funding for the incremental increase in maintenance costs for use of the flood control channels.

added “(g) No impact on water supplies—Re-introduction or migration of species to the San Joaquin River upstream of the confluence with the Merced River made possible by or aided by the existence of restoration flows or any improvements to the river made hereunder shall not result in water supply reductions, additional storage releases, or bypass flows on unwilling third parties due to such re-introduction.

added “(h) No transference of liability—Congress finds that the Federal interest in the restoration of the San Joaquin River upstream of the confluence with the Merced River has been satisfied with regard to the development of the Friant Division, Delta Mendota canal, the continued performance of and compliance with the terms of agreements of the United States to purchase water rights and for exchange of water, its Agreements with the entities that comprise the Exchange Contractors to deliver their water rights in the San Joaquin River pursuant to the terms of the agreements. The enactment of the San Joaquin River Restoration Settlement Act, together with findings in this legislation including the Settling Parties and agencies of the State of California tried to implement the Restoration Program for ten years and the Bureau of Reclamation has stated it will take at least another 15 years to implement assuming full funding is provided, even though that full funding has never been provided since the Settlement was executed or the Restoration Act enacted, and that absent implementation of that funding, there is no possibility of establishing a viable self-sustaining salmonid population and the restoration of the upper San Joaquin River has proven infeasible on terms originally conceived by the parties to the Settlement and Congress in the Restoration Act. Therefore, notwithstanding that the United States and water users and agencies within the Friant Division are released of any existing or future obligations with regard to the Restoration Program, or any similar program, no responsibility for achieving the goals of the Restoration Program, including the provision of flows and the re-introduction of salmon, or other fish species to the San Joaquin River, shall be imposed on the United States, upon the Exchange Contractors or any of its members nor shall the rights to delivery of water reserved to the Exchange Contractors by any agency of the United States or the State of California be abridged or impaired.

added “(i) Absence of agreement—In the absence of an agreement with Friant Division long-term contractors, in the event the State of California, acting through the State Water Resources Control Board or otherwise, or any other party requires the flow of the San Joaquin River below Friant Dam to exceed the amounts stated in Exhibit B of the Settlement, then the authorization to implement the Settlement as provided in this Act shall terminate and the Secretary of the Interior shall cease any action to implement this part and the Stipulation of Settlement (Natural Resources Defense Council, et al. v. Kirk Rodgers, et al., Eastern District of California, No. Civ-S–88–1658 LLK/GGH); provided, further, the Secretary shall also cease to collect or expend any funds from the San Joaquin River Restoration Fund.”

added “10012. Review and determination

added “(a) Determination required—The Governor and the Secretary, shall determine, in consideration of the overall public interest of both the State of California and the Nation, if it is reasonable, prudent, and feasible to implement the Settlement as provided in section 10014(b) and shall submit a joint report to Congress not later than 1 year after the date of the enactment of this Act, stating their findings and recommended action, including—

added “(1) financial considerations;

added “(2) available scientific evidence;

added “(3) water temperature in the lower reaches of the upper San Joaquin River; and

added “(4) alternative uses for the funds required to implement the Settlement.

added “(b) Absence of timely determination—If the Governor and the Secretary, do not provide a joint recommendation within the time specified in subsection (a), then it shall be deemed that implementing the Settlement consistent with section 10014(b) is not reasonable, prudent, and feasible, and the Secretary shall proceed to implement the Settlement consistent with section 10014(a).

added “10013. Interim operations

added “Beginning on the date of the enactment of the Gaining Responsibility on Water Act of 2017 and continuing until a determination and final plan has been developed and approved by the Secretary and Governor as provided under section 10014(b), and if applicable, the warm water fishery plan developed under section 10014(a), the Secretary shall only take the following actions to implement the Settlement according to the this Act:

added “(1) Implementation of the Restoration Goal and the Water Management Goal of the Settlement only to the extent consistent with section 10014(b).

added “(2) No Restoration Flow releases shall be permitted on the San Joaquin River downstream of Sack Dam to the confluence with the Merced River.

added “(3) No salmonids shall be placed into or allowed to migrate to the Restoration Area. If any salmonids are caught at the Hills Ferry Barrier, they shall be salvaged to the extent feasible and returned to an area where there is a viable sustainable salmonid population of substantially the same genotype or phenotype.

added “(4) Implementation of a plan to recirculate, recapture, reuse, exchange and transfer Restoration Flows for the purpose of reducing or avoiding impacts to water deliveries to all Friant Division long-term contractors caused by the Restoration Flows , to the greatest extent feasible.

added “10014. Alternate long-term actions

added “(a) Gravelly Ford–Warm Water Fishery

added “(1) If it is determined under section 10012(a) that the Settlement should not be implemented as provided in subsection (b), then not later than 1 year after such determination, the Secretary and the Governor shall develop and approve a reasonable, prudent, and feasible plan for maintaining a warm water fishery on the San Joaquin River below Friant Dam, but upstream of Gravelly Ford, consistent with the following:

added “(A) No water shall be released into the San Joaquin River for fishery purposes downstream of Gravelly Ford.

added “(B) Existing and future contributions to the Restoration Fund shall be expended for the purposes of—

added “(i) warm water fishery improvements within the San Joaquin River channel upstream of Gravelly Ford; and

added “(ii) water and fishery improvements in the San Joaquin River channel downstream of the confluence with the Merced River and other areas for benefit of fall run salmon.

added “(C) The Secretary shall establish a fund to be jointly administered by the Friant Water Authority, Exchange Contractors, San Joaquin Tributaries Authority, and San Luis Delta Mendota Water Authority to fund restoration actions along the San Joaquin River and its tributaries that achieve water quality objectives for the protection of fish and wildlife. The Secretary shall transfer the following into the fund:

added “(i) All funds in the San Joaquin River Restoration Fund authorized by this part.

added “(ii) All future payments by Friant Division long-term contractors pursuant to section 3406(c)(1) of the Reclamation Projects, Authorization and Adjustment Act of 1992 (Public Law 102–575; 106 Stat. 4721) as provided in the Settlement.

added “(D) In the absence of an agreement with Friant Division long-term contractors, in the event the State of California, acting through the State Water Resources Control Board or otherwise, or any other party requires the flow of the San Joaquin River to continue below Gravelly Ford for fish and wildlife purposes then—

added “(i) all funding specified for transfer under this subsection shall cease, and any funds remaining in the San Joaquin River Basin Restoration Fund shall be transferred to the Friant Water Authority for implementing conveyance improvements on the Friant Kern Canal and Madera Canal to mitigate for subsidence impacts since their original construction; and

added “(ii) the authorization to implement the Settlement as provided in this part, as amended by the Gaining Responsibility on Water Act of 2017, shall terminate and the Secretary shall cease any action to implement this part and the Stipulation of Settlement (Natural Resources Defense Council, et al. v. Kirk Rodgers, et al., Eastern District of California, No. Civ-S–88–1658 LLK/GGH); provided, further, the Secretary shall also cease to collect or expend any funds from the San Joaquin River Restoration Fund.

added “(b) Continued implementation—If, in the decision required by section 10012(a), it is determined that the Settlement should continue to be implemented as provided in section 10014(b), then the following terms are required for Continued Implementation of Settlement and no funds shall be expended to implement the Settlement other than as provided for herein:

added “(1) Improvements—The improvements described in paragraph (11) of the Settlement and any additional improvements identified in the Framework for Implementation published in 2015 and any successors thereto shall be completed before any Restoration Flows are released to the San Joaquin River.

added “(2) Priority projects—The improvements shall be constructed in the following order:

added “(A) Mendota Pool bypass and fish screen.

added “(B) Arroyo Canal fish screen and Sack Dam fish passage facilities.

added “(C) Seepage mitigation actions to allow Restoration Flows of up to 4500 CFS such that there will be no involuntarily incurred damage to private property and no damage to levees.

added “(3) Other improvements—The remainder of the Improvements shall be constructed in an order deemed appropriate by the Secretary after the foregoing projects are completed.

added “(4) Construction assistance—If agreed to by the Exchange Contractors or any of its members, the Secretary shall enter into an agreement with the Exchange Contractors or any of its members to assume construction responsibility from initial design through completion of such improvements as the Exchange Contractors or any of its members may agree to, provided that the Secretary shall retain financial responsibility for such improvements and shall reimburse the Exchange Contractors or any of its members for costs incurred by them and their contractors, if any, expended in the construction of the improvements. The Secretary shall enter into a construction agreement with the Exchange Contractors or its members, as applicable, and subject to their approval, consistent with the terms of this title.

added “(5) Technical advisory committee and restoration administrator—The Secretary shall add to the Technical Advisory Committee (TAC), established pursuant to the Settlement, one representative from the Exchange Contractors and one representative from the San Luis & Delta-Mendota Water Authority. Any decisions and/or recommendations made by the Restoration Administrator shall be first discussed with the TAC and made on the basis of consensus to maximum extent possible. Any recommendations made by the Restoration Administrator are advisory only, shall be in writing, shall include references to the science relied on and specify the benefits to fish in the river, and include the level of consensus reached by the TAC. The Secretary’s final decision on any action, including flows, can deviate from the Restoration Administrator’s recommendation provided that the Secretary’s final decision is based upon sound and objective science, and is otherwise consistent with this title.

added “(6) Restoration flows—The appropriate level of Restoration Flows under any circumstance shall be no greater than that set forth in the hydrographs attached as exhibit B to the Settlement, and shall be no greater than the real-time fishery needs required to meet the Restoration Goal. The Secretary shall make the final decision as to the appropriate level of Restoration Flows and other actions regarding implementation of the Restoration Program. The appropriate level of Restoration Flows shall at a minimum not exceed channel capacity, cause seepage damage, or be inconsistent with any other requirements in this section. The Secretary’s decisions and those of the Secretary of Commerce shall be fully supported by the best commercial and scientific information available, shall be made in an open and transparent manner, and shall be based on objective information capable of replication.

added “(7) Fish reintroduction—No fishery shall be introduced or placed for any reason in to the San Joaquin River upstream of the Merced River, until Reclamation has released Restoration Flows down the San Joaquin River in each hydrologic year type: wet, above normal, below normal, dry, and critically dry and determined that the improvements are fully functional and that seepage impacts have been fully mitigated. At least 180 days before the introduction of spring run Chinook salmon the Bureau of Reclamation shall submit a report to Congress that provides a critical examination of the impact of Restoration Flows on seepage and the improvements, and the likelihood of success in restoring a salmon fishery that is viable, sustainable and capable of volitional passage.

added “(8) Protected species—Any protected species migrating into the Restoration Area shall be deemed to be a nonessential experimental population. Congress finds that due to human–caused physical changes to the pathways of the San Joaquin River upstream of the confluence of the Merced River the San Joaquin River is deemed a distinct and separate geographic area and no agency shall take any action pursuant to any authority or requirement of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or any other Federal or State species protection law that will have an adverse impact on landowners or water agencies within the Restoration Area unless such impacts are incurred on a voluntary basis.

added “(9) Subsidence—Prior to implementing any other actions, the Secretary shall work with local water districts and landowners to ensure the actions include appropriate solutions to past and likely future subsidence. Without resolution to the subsidence issue, the improvements described in the Settlement and the San Joaquin River and/or the flood control system will continue to be irreparability damaged. Any costs incurred by the Secretary, including but not limited to acquisition of property from willing sellers shall be non-reimbursable.

added “(10) Full funding—Prior to commencing construction of any Improvement, the Secretary shall approve a funding plan that demonstrates that the United States has obtained all authorizations for appropriations combined with other authorized and reasonably foreseeable funding sources necessary for the orderly completion of all improvements described in paragraph (11) of the Settlement and any additional improvements identified in the Framework for Implementation published in 2015, including any amendments thereto.

added “(11) Mitigation of impacts—Prior to the implementation of decisions or agreements to construct, improve, operate, or maintain Improvements. or facilities that the Secretary determines are needed to implement the Settlement, the Secretary shall—

added “(A) identify the impacts associated with such actions;

added “(B) identify the actions that the Secretary must implement to mitigate any impacts on water users and landowners in the Restoration Area; and

added “(C) shall implement all of the mitigation actions so as to eliminate or reduce to an immaterial effect any adverse impacts on water users and landowners.”

removed In the event that the Bureau of Reclamation or another Federal agency initiates or reinitiates consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service under section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)(2)), with respect to construction or operation of the Central Valley Project and State Water Project, or any part thereof, the State Water Project contractors and the Central Valley Project contractors will be accorded all the rights and responsibilities extended to applicants in the consultation process.

The Secretary of the Interior, through the Commissioner of Reclamation, shall—

changed If the The Secretary of the Interior fails to provide Interior, acting through the feasibility studies described in section 201 to Commissioner of the appropriate committees Bureau of Reclamation, may partner or enter into an agreement on the House water storage projects identified in section 103(d)(1) of Representatives the Water Supply Reliability and Environmental Improvement Act (Public Law 108–361) (and Acts supplemental and amendatory to the Senate Act) with local joint powers authorities formed pursuant to State law by the times prescribed, the Secretary shall notify each committee chair individually in person on the status of each project once a month until irrigation districts and other local water districts and local governments within the feasibility study for that project is provided applicable hydrologic region, to Congress.advance those projects.

added The Bureau of Reclamation, in cooperation with the United States Geological Survey, the State of California, and local and State water agencies, may conduct detailed geophysical characterization activities of subsurface aquifer systems and groundwater vulnerability in California, which has experienced a critical, multi-year drought that resulted in severe groundwater overdraft in some areas, followed by less than optimal recharge from the heavy rainstorms and flooding during the 2016–2017 winter season. This geophysical survey should include data pertaining to the following:

added The authority under section 4006 of the WIIN Act shall expire 7 years after the date of the enactment of this Act.

In this title:

changed This title may be cited as the “Accelerated Revenue, Repayment, and Surface Water Storage Enhancement Act”.“Water Rights Protection Act of 2017”.

added In this title: