**TESTIMONY OF THE MERCED IRRIGATION DISTRICT**

**BY KENNETH M. ROBBINS, GENERAL COUNSEL,**

**REGARDING S. 27,\
A BILL TO AUTHORIZE THE IMPLEMENTATION OF**

**THE SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT**

**BEFORE THE WATER AND POWER SUBCOMMITTEE OF\
THE SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES**

**May 3, 2007**

Good morning, Acting Chairwoman Cantwell and members of the
Subcommittee. My name is Kenneth Robbins. I am General Counsel for
Merced Irrigation District. I am pleased to have the opportunity to
testify today regarding S. 27, the San Joaquin River Restoration
Settlement Act, introduced by Mrs. Feinstein, that would implement the
settlement agreement reached by the parties to the Friant litigation.

The Merced Irrigation District is part of the San Joaquin Tributaries
Association (SJTA), a group of five associated eastside Irrigation
Districts with water storage and hydroelectric facilities located on the
three principal tributaries to the San Joaquin River. These agencies, in
various combinations and partnerships, provide flood control, urban,
agricultural and environmental water supply, retail electric service,
and recreation facilities to California's northern San Joaquin Valley.

The SJTA, including the Merced Irrigation District, is supportive of the
goals of the settlement. The Districts are confident the settlement can
be implemented in a manner that ensures both the restoration of the San
Joaquin River and the mitigation of impacts from such an undertaking on
third parties. The District believes the settling parties when they say
they do not intend to impose impacts on third parties.

I testified previously on this subject before the House Water and Power
Subcommittee last fall and again in March of this year. Much of my
earlier testimony contained background information that is pertinent to
the issue before you. Rather than repeat that information, I
respectfully request that my earlier testimony and that of Mr. Allen
Short, General Manager of the Modesto Irrigation District, be
incorporated as part of the record of this hearing. The testimony is
hereafter attached. We stressed at that time that the third parties were
supportive of the settlement. We continue to support the efforts of the
settling parties and the legislation as introduced.

The legislation before you is the product of months of hard work by the
parties to the litigation as well as the third parties, and could not
have been successfully negotiated without the efforts of Senators
Feinstein and Boxer, Congressmen Radanovich, Cardoza, and Costa, and
their excellent staffs. We are grateful to them for their support of
this legislation that is so vital to the San Joaquin Valley.

The settlement package negotiated by the parties to the NRDC v. Rodgers
litigation included proposed legislation to implement the settlement.
While we felt that the legislation was a good start, it did not, by
itself, provide the kind of third party protections needed to make good
on the promise by the settling parties that the settlement not impose
substantial third party impacts.

Speaking for my client, the Merced Irrigation District, and the SJTA, S.
27 as it now stands provides the protections that are necessary for us
to support the settlement.

I want to now focus my discussion on Section 10 of the Act. The third
parties offered language to amend the legislation originally proposed by
the settling parties. These amendments were made to protect the Eastside
districts, as well as the San Joaquin River Exchange Contractors, other
water users on the mainstem San Joaquin River, and the U.S. Bureau of
Reclamation and the California Department of Water Resources and their
contracting agencies, from the unintended consequences of introducing a
federally-listed threatened species of Chinook salmon into the San
Joaquin River. Section 10 was added to provide for the reintroduction of
Central Valley Spring Run Chinook Salmon without impacting the third
parties and to permit the restoration of the San Joaquin River to move
forward in a cooperative manner.

The first thing to note is that Section 10(a) makes a finding that the
settlement and the reintroduction of the Central Valley Spring Run
Chinook Salmon is a unique and unprecedented circumstance requiring
clear Congressional intent to ensure that the goals of the settlement
are accomplished. Section 10(b) of the Act states that the
reintroduction of Spring Run Salmon shall be made pursuant to Section
10(j) of the ESA, provided that the Secretary of Commerce makes the
requisite regulatory findings.

Section 10(j) of the ESA authorizes the Secretaries of Commerce or the
Interior to release "experimental populations" of threatened or
endangered species outside the current range of the species in order to
further the conservation of the species. 16 U.S.C. § 1539(j). At the
present time, NMFS has not adopted regulations concerning experimental
populations, although it is permitted to do so under the ESA. The U.S.
Fish and Wildlife Service (USFWS) however, has adopted regulations under
Section 10(j).

"Experimental population" means a designated population, including
subsequent off-spring, which can be introduced into an area where it is
"wholly separate geographically from nonexperimental populations of the
same species." 16 U.S.C. § 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 endangered. 16 U.S.C. §
1539(j)(2)(C); 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. § 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)(C); 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 the Secretary of Commerce to issue a final rule pursuant
to Section 4(d) of the ESA that will govern the incidental take of the
Central Valley Spring Run Chinook Salmon *prior* to its reintroduction
in the San Joaquin River. Included in the final 4(d) rule should be a
provision to ensure that third parties not suffer water supply impacts
as an indirect effect of the San Joaquin River restoration and that
current lawful operations in the San Joaquin River watershed---including
tributary water supply and hydroelectric operations on which the SJTA
districts and their citizens are critically dependent---would not be
subject to "take" under the ESA. S. 27 contains a provision that
provides that the reintroduction of the Central Valley Spring Run
Chinook Salmon not impose more a than de minimis water supply
reductions, additional storage releases, or bypass flows on third
parties. We support this language as it is currently written.

With regard to the "wholly separate" criterion, the reintroduction of
Central Valley Spring Run Chinook Salmon to the San Joaquin River should
qualify as no other populations of Central Valley Spring Run Chinook
Salmon exist on the San Joaquin River or its tributaries. Indeed, to
reintroduce them, individuals or eggs of Central Valley Spring Run
Chinook Salmon on the Sacramento River will have to be transported to
the San Joaquin River, likely in multiple years.

With respect to the required finding that the experimental population's
loss would not appreciably reduce the species' likelihood of survival,
it would be difficult to understand how the Secretary could find that
the population to be reintroduced is "essential to the continued
existence of the species" and still remove it from a much more friendly
habitat---particularly in light of its threatened status rather than
endangered. One would reasonably conclude that the fish would not be
taken from their original habitat for such an experiment if they were in
fact "essential."

This protects all San Joaquin River and tributary water, power and flood
control operations in three ways. First, if the experimental
reintroduction of Central Valley Spring Run Chinook Salmon cannot be
sustained based upon the actions of the settling parties, the Eastside
Districts will not be required to release additional water, change
operations, or commit resources to make up the shortfall. Second, if the
experimental reintroduction is successful, such success will demonstrate
that the current lawful operations of the five Eastside districts have
no detrimental effect on the reintroduced Central Valley Spring Run
Chinook Salmon. Third, the designation of the reintroduced Central
Valley Spring Run Chinook Salmon as a nonessential experimental
population protects the water users while the experiment is in effect
and allows an opportunity for the third parties, the State of
California, the settling parties and the federal government to develop a
longer term Habitat Conservation Plan.

S. 27 also protects the Merced, Turlock and Modesto Irrigation Districts
from having to mitigate impacts to the experimental population of
Central Valley Spring Run Chinook Salmon prior to 2026 when their
hydroelectric projects are relicensed by the Federal Energy Regulatory
Commission (FERC) in 2014 and 2016. The Merced Irrigation District and
the other eastside districts need the same level of protection as is
afforded to the U.S. Bureau of Reclamation under the terms of the
settlement. Under the settlement there is no re-opener for twenty years,
until 2026, for the release of additional water from Friant Dam. The
Third Parties need this same protection for their FERC relicensing.
Merced Irrigation District's current FERC license expires in 2014, while
Modesto Irrigation District and Turlock Irrigation District will seek to
relicense their Don Pedro Project in 2016. The National Marine Fisheries
Service has mandatory conditioning authority under Section 18 of the
Federal Power Act and Section 7 of the ESA to condition these licenses
with terms and conditions related to the reintroduced, experimental
population of Central Valley Spring Run Chinook Salmon. The Districts
are agreeable to have a reopener clause in their new FERC licenses to
specifically address the population's status when the experiment is
concluded or reviewed in 2024.

In recognition of this unique circumstance, S. 27 provides that the
Secretary of Commerce exercise its authority under Section 18 of the
Federal Power Act by reserving its right to file prescriptions until
after the settlement terminates or December 31, 2025. This protects all
FERC projects on the San Joaquin River and its tributaries from
potential unreasonable mandatory conditions placed in their licenses to
protect a reintroduced, experimental population. The time to address
this issue is when flows on the entire river system may be revisited for
Spring Run Salmon as set forth in the Settlement Agreement.

Following the agreement on the legislation which is now S. 27, the
Stipulation of Settlement was approved by Judge Karlton on October 23,
2006. The SJTA filed an amicus curiae brief supporting the proposed
settlement and also identifying for the judge the potential third party
impacts from the settlement as proposed. Those concerns have been
satisfactorily alleviated by S. 27.

The third parties, including the SJTA, plan to be active participants in
the restoration efforts on the San Joaquin River. The final major
activity involving the third parties was the development of a Memorandum
of Understanding (MOU) with the United States Bureau of Reclamation. The
settlement and the draft legislation did not provide a direct vehicle
for third party participation. To that end we have approved a MOU that
will allow the third parties to provide meaningful input into the
restoration activities and to coordinate our ongoing operations on the
tributaries and mainstem with those of the Restoration Administrator and
the other restoration participants.

The MOU is necessary because the five eastside irrigation districts of
the SJTA have expended substantial amounts of water and money to restore
the Fall Run Chinook Salmon fishery on the Merced, Tuolumne and
Stanislaus Rivers. These efforts include active participation in, and
funding for the San Joaquin River Agreement, the Vernalis Adaptive
Management Plan (VAMP), Federal Energy Regulatory Commission (FERC)
proceedings, on-going district funded fishery and habitat studies and
monitoring and restoration activities, and the Merced River Fish
Hatchery. These efforts were covered in my September 21, 2006, testimony
to the House Water and Power Subcommittee.

This concludes my testimony. Madam Chairwoman, thank you for the
invitation to testify before this Subcommittee today. I will be happy to
answer any questions members of the Subcommittee may have.