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[Senate Hearing 110-93]
[From the U.S. Government Publishing Office]

                                                         S. Hrg. 110-93
 
                     SAN JOAQUIN RIVER RESTORATION 
                             SETTLEMENT ACT
=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   on

                                 S. 27

 TO AUTHORIZE THE IMPLEMENTATION OF THE SAN JOAQUIN RIVER RESTORATION 
                               SETTLEMENT

                               __________

                              MAY 3, 2007

                       Printed for the use of the
               Committee on Energy and Natural Resources

                     U.S. GOVERNMENT PRINTING OFFICE

36-789 PDF                 WASHINGTON DC:  2006
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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii              PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota        LARRY E. CRAIG, Idaho
RON WYDEN, Oregon                    CRAIG THOMAS, Wyoming
TIM JOHNSON, South Dakota            LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana          RICHARD BURR, North Carolina
MARIA CANTWELL, Washington           JIM DeMINT, South Carolina
KEN SALAZAR, Colorado                BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey          JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas         GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont             JIM BUNNING, Kentucky
JON TESTER, Montana                  MEL MARTINEZ, Florida
                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
            Frank J. Macchiarola, Republican Staff Director
             Judith K. Pensabene, Republican Chief Counsel
                                 ------                                

                    Subcommittee on Water and Power

                  TIM JOHNSON, South Dakota, Chairman
BYRON L. DORGAN, North Dakota        BOB CORKER, Tennessee
RON WYDEN, Oregon                    LARRY E. CRAIG, Idaho
MARIA CANTWELL, Washington           CRAIG THOMAS, Wyoming
KEN SALAZAR, Colorado                JIM DeMINT, South Carolina
BLANCHE L. LINCOLN, Arkansas         GORDON H. SMITH, Oregon
JON TESTER, Montana                  JIM BUNNING, Kentucky

   Jeff Bingaman and Pete V. Domenici are Ex Officio Members of the 
                              Subcommittee

                          Mike Connor, Counsel
           Josh Johnson, Republican Professional Staff Member

                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Boxer, Hon. Barbara, U.S. Senator from California................     5
Candee, Hamilton, Senior Attorney, Co-Director, Western Water 
  Project, Natural Resources Defense Council, San Francisco, CA..    26
Cantwell, Hon. Maria, U.S. Senator from Washington...............     1
Chedester, Steve, Executive Director, San Joaquin River Exchange 
  Contractors Water Authority, Los Banos, CA.....................    34
Corker, Hon. Bob, U.S. Senator from Tennessee....................     2
Dooley, Daniel M., Esq., representing Friant Water Users 
  Authority, Lindsay, CA.........................................    18
Feinstein, Hon. Dianne, U.S. Senator from California.............     2
Grindstaff, P. Joseph, Deputy Secretary for Water Policy, 
  California Resources Agency and Director, California Bay-Delta 
  Authority, Sacramento, CA......................................    31
Ishida, Allen, Chairman, Tulare County Board of Supervisors, 
  Visalia, CA....................................................    42
Limbaugh, Mark, Assistant Secretary for Water and Science, 
  Department of the Interior.....................................     7
Robbins, Kenneth M., General Counsel, representing Merced 
  Irrigation District, Merced, CA................................    38

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    51

                              Appendix II

Additional material submitted for the record.....................    61

              SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT

                              ----------                              

                         THURSDAY, MAY 3, 2007

                               U.S. Senate,
                   Subcommittee on Water and Power,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m., in 
room SD-366, Dirksen Senate Office Building, Hon. Maria 
Cantwell presiding.

  OPENING STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM 
                           WASHINGTON

    Senator Cantwell. I want to call to order this hearing 
before the Water and Power Subcommittee. It is my pleasure to 
welcome everyone to this morning's hearing, and specifically 
the witnesses who traveled across the country to be with us 
here today. We appreciate their efforts.
    The purpose of this hearing is to receive testimony on S. 
27 sponsored by Senator Feinstein and Senator Boxer, which 
authorizes the implementation of the San Joaquin River 
Restoration Settlement.
    As I understand it, the Settlement is the culmination of 
years of litigation and tough negotiation among some very 
diverse interest in California. These parties have now come 
together with a plan to address one of the toughest issues 
facing Natural Resource managers in the West--the restoration 
of salmon fisheries in the heart of a highly productive 
agriculture region. For years now, along the west coast, people 
from all walks of life have worked together to ensure that 
salmon runs in this region are healthy and thriving.
    Unfortunately, the hard work has not paid off in the way 
that we had hoped. By the late 1990's, west coast salmon runs 
had declined to only 10 to 15 percent of what they had been in 
the 1800's. Currently, 26 district populations of Pacific 
Salmon and Steelhead Trout are listed as either endangered or 
threatened under the Endangered Species Act, and there is 
obviously much more work to be done.
    Up and down the Pacific coast, salmon are not only an 
important food and economic resource, they are also a cultural 
icon. Salmon recovery is both possible and vital. Only with the 
return of abundant, self-sustaining populations of wild salmon 
and Steelhead to the Pacific States, can we fully honor tribal 
treaties, protect salmon-based communities, and safeguard the 
$4 billion in salmon recovery that's already been made in 
investments by American taxpayers, and obviously by the Pacific 
Northwest electric rate payers over the past 25 years.
    In northern California and the Northwest States, salmon are 
an indicator of the health of our land, of our streams, and of 
our economy. The bill before us today represents an opportunity 
to go on the offensive, and restore salmon to areas in which 
they have long been gone, and to do that, we have to make sure 
that these supporting, competing interests work together.
    So, I look forward to working on this bill, and to gain 
some additional insight from those testifying today.
    As I noted, Senators Feinstein and Senator Boxer are the 
sponsors of this legislation, and we welcome them to provide 
their perspectives on this bill before the subcommittee.
    I know that both of you are pressed for time, but I'd also 
like to invite Senator Corker, the ranking member of the 
subcommittee, to make his opening comments, and then we will 
allow you to make your statements, and obviously, then, 
followed by the administration.
    So, Senator Corker, thank you very much for joining me at 
this subcommittee hearing today.

          STATEMENT OF HON. BOB CORKER, U.S. SENATOR 
                         FROM TENNESSEE

    Senator Corker. Madam Chairwoman, thank you, and I think 
you probably know a little bit more about this subject than I 
do, but thank you.
    And, it's a pleasure to be here with the San Joaquin Water 
Settlement in California, to discuss it, I welcome both of my 
esteemed colleagues from California, Senators Feinstein and 
Boxer. And thank you for coming to the subcommittee hearing.
    I'm pleased to see the parties involved in this case after 
18 years of contentious litigation have decided to settle. The 
goals of the settlement, to restore and maintain fish 
populations, while not adversely impacting water supplies to 
long-term water contractors, is commendable.
    I recognize the work the witnesses have put into the 
settlement, and look forward to hearing from each of you. As 
you provide your remarks, I would like to hear you discuss 
three issues, and that is, the financial mechanisms needed to 
ensure a full settlement, how third-party impacts are going to 
be addressed, and how successes will be determined under the 
settlement.
    Again, I thank you, I thank the witnesses for your 
presence, and thank you, Madam Chairwoman, for conducting this 
hearing. I look forward to hearing the testimony today.
    Senator Cantwell. Thank you, Senator Corker.
    Senator Feinstein, and Senator Boxer, again, welcome before 
the subcommittee.
    Senator Feinstein, would you like to start?

       STATEMENT OF HON. DIANNE FEINSTEIN, U.S. SENATOR 
                        FROM CALIFORNIA

    Senator Feinstein. Thank you very much. Both of us 
appreciate this courtesy. There's an old saying in California, 
``Whiskey's for drinkin', and water's for fightin'.'' And 
there's no area where this has been more the case than the 
future of the San Joaquin River.
    This River historically supported large salmon populations, 
but since the late 1940's, approximately 60 miles of the River 
have dried up in most years. And there have been lengthy court 
battles.
    The Natural Resources Defense Council and the environmental 
community sued the Friant Water Users and the Department of the 
Interior. The litigation has gone on for 18 years now.
    But a year and a half ago, all of that changed. Judge 
Karlton, in the Eastern District of California, ruled that if 
the parties couldn't come to a settlement, he would settle it 
for them. And, all the parties believe that the judge would 
likely rule in favor of releasing much larger amounts of water 
from Friant Dam than the settlement requires.
    In addition, the judge's imposed solution would lack the 
benefit of months of compromise negotiations between the 
parties, and other groups not part of the litigation, on how to 
restore the River, while preserving the many parties' different 
interests.
    And so, all of the parties decided--believe it or not--that 
a settlement would be in their best interest, and they asked 
for my help, and the help of Congressman Radanovich to push 
them towards settlement. All agreed the alternative to 
settlement would be worse.
    Despite all expectations, each side did make concessions. 
They did come to an agreement, but the process wasn't finished. 
The settlement required Federal implementing legislation to 
become fully effective. And, so I invited all of the parties to 
the litigation, and other parties who felt their concerns had 
not been addressed, back to Washington to hammer out the 
details of the legislation.
    The negotiations went on for hundreds of hours, over a 
period of weeks, last September. They were tough negotiations. 
They often went on late into the night. We went over every line 
of this legislation. And when it ended, I asked if anybody had 
objections over any provision. We went provision by provision. 
If they did, then we would discuss and caucus, and come back 
with language that everyone could agree on.
    And finally, we reached a point where everyone around the 
table agreed on the legislation. And then I asked each of the 
parties to sign, and indicate that they would support it--both 
in public and in private--and they did.
    After the voters of California passed Propositions 84 and 
1E at the November election, which provided at least $100 
million, and potentially hundreds of millions in State funding 
for this restoration project, I asked the settling parties, the 
State and other congressional sponsors of this settlement 
effort to agree to one final modification to the financing 
provisions of this legislation.
    This final modification which I requested, requires a 50 
percent match in non-Federal contributions as a pre-condition 
for spending any new Federal appropriations that are authorized 
by this bill.
    So, we're here today. Here's what the legislation will do. 
It will help transform the San Joaquin into a living river, and 
ensure that the hardworking men and women in the Friant Service 
Area will continue to have a stable water supply.
    The legislation indicates how the settlement agreement is 
going to be implemented. It involves the Department of the 
Interior, the Department of Commerce, the Bureau of 
Reclamation, and essentially gives the Secretary of the 
Interior the additional authority to: one, take the action to 
restore the River, provides the oversight; two, reintroduce the 
California Central Valley Spring-run Chinook salmon; three, 
minimize water supply impact on Friant water users; and, four, 
avoid reductions in water supply for third-party water 
contractors.
    The parties bridged the gap for one simple reason--it gives 
all sides certainty on how the river will be restored, and the 
water will be used.
    The Natural Resources Defense Council will be able to see 
that the San Joaquin River is restored, without further 
litigation. The Friant Water Users Authority will know that its 
water supply will remain at manageable level. The third-party 
water contractors will be able to avoid all but the smallest 
impacts as a result of the settlement, except on a voluntary 
basis. And the State of California now has partners in efforts 
to restore the river, improve water supply and protect 
threatened species.
    Around the table were my friend and colleague, Senator 
Barbara Boxer, and when she could not attend, she had her staff 
present, I believe her Chief of Staff, present at all meetings, 
Representatives George Radanovich, Richard Pombo, Dennis 
Cardoza, Jim Costa, and Deven Nunes, representatives of the 
State of California, and the Federal Government, the Friant 
Water Users Authority, the Natural Resources Defense Council, 
as well as numerous third-party water contractors from the 
Central Valley--they were all there. And this is the first time 
I can remember five members of the House of Representatives 
actually being there for virtually most of all meetings.
    This indicates how critical this issue is to the entire 
Central Valley. The negotiations, as I said, went late into the 
evening, but each side came together in good faith, and 
compromised on a number of key issues. And, in the end, the 
Natural Resources Defense Council, the Friant Water Users 
Authority, the State of California and all third parties have 
agreed to support the settlement and the legislation, and they 
pledged to do what's necessary to see that it's approved by 
Congress.
    I believe the parties involved in these negotiations came 
up with a workable solution. And I believe the parties will 
continue to work in good faith to address any remaining water 
supply reductions for Friant.
    At my request, Friant has prepared a 76-page list of water 
supply project options. These include projects to build 
groundwater banking and recharge facilities. To construct 
facilities to link the separate water distribution systems of 
the Friant district, and to increase the capacity of major 
water conveyance facilities, for the projects that need Federal 
funding. As an appropriator, I stand by to do what I can to 
help, and I know my colleague, Senator Boxer will, as well.
    We expect many projects like these to be in place before 
full restoration flows beginning in 2014. But here's the risk--
if we don't pass this legislation, and the settlement is not 
enacted, then the future of the San Joaquin won't be charted by 
the people who use the water, it will be decided by a judge, 
who will demand that far more water be released than is 
envisioned by the current settlement agreement--with far less 
certainty, this is the key--over how that water will be used.
    Therefore, if the judge just releases water, there can be 
no certainty that it can be planned at times, and the flows in 
a manner which will accommodate the salmon, as well as water 
users.
    So, I'm here to ask you to pass this legislation. Again, I 
repeat, it is a settlement between parties, it is not 
legislation that Senator Boxer or I sat down to write to solve 
a problem--we may have solved it differently, I don't know. 
But, what I do know is that 18 years of court litigation is too 
long, and right now you have representatives from the parties 
of issue that are here today--this is not an easy thing to do, 
it's not an easy thing to do for these people to compromise, 
but they have done it, and they've done it with the equal 
interests of their farming interests, the water users' 
interests, and the interests of returning this spring-run 
salmon.
    Senator, you asked, what guarantee is there? What oversight 
will there be? There is no real guarantee, but the Department, 
the State and the Federal Government have the ability to 
maintain some oversight over this, to see that it is done, to 
learn from mistakes in water release, and to try to regenerate 
this important salmon run.
    We believe it can be done, and we believe it's going to 
take some careful planning, some experimentation, but one thing 
I really do believe, after sitting at that table for I don't 
know how many hours, is that there is truly goodwill now, among 
these communities. And so we have the opportunity to do 
something which has never been done before.
    I thank you, and I appreciate your consideration.
    And, may I be excused? I have a Data Breach bill on markup 
in Judiciary.
    Senator Cantwell. Thank you, Senator Feinstein, we 
appreciate you being here on this important legislation, and I 
know that you do have to go to a markup of your own bill in 
another committee, so we'll excuse you, unless Senator Corker 
has a comment or question.
    Senator Corker. It was outstanding testimony, and it sounds 
like you've done an outstanding job in reaching settlement. I 
thank you for coming before us today.
    Senator Feinstein. Well, thank you, I appreciate that, 
thank you.
    I'll turn it over to my colleague.
    Senator Cantwell. It's a pleasure to have the chairman of 
the Environment and Public Works Committee to testify before 
the Subcommittee on Water and Power, so, Senator Boxer, thank 
you for being here.

         STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR 
                        FROM CALIFORNIA

    Senator Boxer. Thank you. I want to say to my friend, 
Senator Feinstein, just for one moment before she leaves, I 
want to say publicly, a great big thank you to her, for her 
patience in sitting at that table. And just her focus on 
achieving this, I was so glad to be her assistant in this 
matter, and I'm so thrilled to be a co-sponsor of the 
legislation, and I'm very pleased to be there today. So, go 
forward and do good work.
    But this really was something to see, because as the 
Senator said, in our State when you mention water, people just 
sit up. If you look at how our State grew, and all of the water 
wars, you would understand it, and we have many more that will 
come before you at another day, which I won't go into now.
    I want to thank both of you Senators for being so kind to 
allow us to present this to you. I also want to thank Senators 
Bingaman and Domenici, so if I might do that, and then I will 
summarize. Mine is a lot briefer, but I do have some pictures 
to show you, which I think will be interesting.
    The San Joaquin River Restoration Settlement Act is a great 
bill for California's environment, its economy, its quality of 
life, and as you heard, it's a result of years of debate, 
compromise, lawsuits, wranglings, everything. And, when I was 
asked at those meetings, what we saw was, you know, people who 
just can't see eye to eye, finally just force themselves to see 
eye to eye. The environmental community want to restore this 
into a great river again, and the agricultural community, who 
depends on the water for livelihood.
    So, I want to show you the Friant-Kern Canal--this is an 
152-mile long structure that carries water in a southerly 
direction from Millerton Lake to Kern River. The Friant-Kern 
Canal, along with the 36-mile long Madera Canal, provide 1 
million acres of farmland in central California with a vital 
source of irrigation water.
    The gross agriculture production of these lands in 
California's Central Valley exceeds $3 billion annually, so 
water is the lifeblood. In addition, it also provides the 
essential water to cities and communities within the project 
area.
    And then, of course, I'm going to show you something you 
know very well--a grape field--this is the produce that 
Americans enjoy every day, but there are consequences to 
diverting so much water to agriculture. Dry rivers--this dry 
spot is just one of what averages to be 60 miles each year that 
runs dry on the San Joaquin, and that's right, one of 
California's great rivers, its second largest, runs dry for 
one-fifth of its total length.
    It's meant that the once-great salmon runs of the San 
Joaquin no longer exist, and it's hurt fisherman and Indian 
tribes, and recreational business, and our way of life. But the 
bill we're considering is going to give the San Joaquin a 
second chance, and again, try to meet everyone's needs.
    This river was born in the midst of the granite peaks and 
verdant forests of California's high Sierra Nevada. The great 
stream reaches all the way to the Delta, and the San Francisco 
Bay. The San Joaquin River is very much a part of our great, 
rich natural heritage.
    Fishing--there are many parts of the river that are 
beautiful, we have the opportunity to make it a living river, 
along its entire length.
    So, colleagues, as you've heard, this bill is a result of 
decades of struggle, and countless hours of negotiations. It 
demonstrates that agriculture, environmentalists and interested 
stakeholders can work together to do good things for our 
community. A health and revitalized San Joaquin River will 
prove that an agricultural economy can exist side-by-side with 
a healthy environment. And, it has been difficult to get where 
we are today, but I think we're at a very key moment here, with 
the help of Congress, we can move forward.
    And, I think, Senator Corker, you have a very fair 
question. And I would say, now that you know a little bit more 
of the background and the struggles, and the fact that the 
Court is ready, willing and able to impose a settlement, that 
acts as--I think--an enforcer. Knowing what could happen is far 
worse than what we have here, and what we can do here.
    So, I look forward to working with you on this committee, 
with Senator Feinstein, and all of the stakeholders, our 
colleagues in the House, to seize this chance to make this 
great vision a reality. Again, I thank you so very much. And as 
far as technical questions of the bill, I would ask that those 
be directed to Senator Feinstein's staff, because as far as 
technically, I don't have the--I didn't write it, I am the co-
sponsor of it, so I don't think I can answer technical 
questions.
    But, on the big picture, just know how hard we worked to 
get this where it is. Know how hard it was for the 
stakeholders, who really have a lot of emotions at stake in all 
of this, whether they're farmers, and you know, they know the 
work they do and how they need the water, or the recreational 
industry, the environmentalists--it's very tough, but this is a 
wonderful achievement, I think, by Senator Feinstein, and I am 
very honored to just be a helper in the whole thing, and I hope 
you can also help us to make this become a reality.
    Thank you very much.
    Senator Cantwell. Thank you, Senator Boxer, for your 
testimony, and I don't know, Senator Corker, if you have any 
questions or comments for Senator Boxer?
    Senator Corker. I think any technical questions, as you 
mentioned, we'd ask Senator Feinstein's staff. Thank you for 
coming before us, and it sounds as if you all have got a great 
relationship between the two Senators, and----
    Senator Boxer. We do.
    Senator Corker. And a great resolve for the citizens of 
California. So, thank you for coming.
    Senator Boxer. Senator, thank you so much.
    And, Madam Chairman, thank you very much.
    Senator Cantwell. Thank you, Senator Boxer.
    We'll now go to our first panel, which is going to be Mr. 
Limbaugh, the Assistant Secretary for Water and Science at the 
Department of the Interior.
    Welcome Mr. Limbaugh, we appreciate you being here this 
morning to give testimony in regards to S. 27.

 STATEMENT OF MARK LIMBAUGH, ASSISTANT SECRETARY FOR WATER AND 
              SCIENCE, DEPARTMENT OF THE INTERIOR

    Mr. Limbaugh. Thank you, Madam Chairman. Senator Corker, 
Madam Chairman, members of the subcommittee, I appreciate the 
opportunity to be here today to discuss S. 27. My name is Mark 
Limbaugh, I'm the Assistant Secretary of the Interior for Water 
and Science. I have a written statement I'd like to ask be 
submitted for the record, and just give some oral comments, 
thank you.
    The Department supports S. 27. As you know, this bill 
implements a settlement of an 18-year old legal dispute, NRDC 
v. Rogers, et al. Through the good faith efforts of the 
settling parties, the Natural Resources Defense Council, Friant 
Water Users Authority and representatives of the Federal 
agencies, and with the help of Senator Feinstein and Senator 
Boxer, Representative Radanovich and the other representatives 
of the California delegation, an opportunity exists to resolve 
this litigation in a way that will restore the San Joaquin 
River in California, and increase water supply certainty to 
farmers in the Friant Division, Bureau of Reclamation Central 
Valley Project.
    The settlement agreement is based on two goals: to restore, 
and maintain fish populations in good condition in San Joaquin 
River, below Friant Dam to the confluence of the Merced River, 
and to reduce and avoid adverse water supply impact to all of 
the Friant Division long-term contractors that may result for 
the flows provided for in the settlement.
    S. 27, in turn, directs that funds are to be used to meet 
both the water management, and restoration goals outlined in 
the settlement. The bill directs the use of the Friant 
surcharge, annually paid to the CBPIA restoration fund to 
implement the settlement. This surcharge is expected to average 
about $8 million per year, or $160 million over the 20 year 
period.
    In addition, up to $2 million annually of other CBPIA 
restoration fund payments from the Friant users would also be 
available for settlement purposes.
    S. 27 also dedicates the capital component of water rates 
paid by Friant Division water users toward implementation. 
Worth roughly $220 to $240 million over the 20 year period. 
Under this bill, these funds would be deposited in a newly-
established San Joaquin River Restoration Fund, to pay directly 
for implementing the settlement. In addition, S. 27 authorizes 
up to $250 million of Federal appropriations to contribute 
toward implementation, but as Senator Feinstein pointed out, 
requiring an equivalent non-Federal cost share.
    The State of California's recent passage of Propositions 84 
and 1E should provide about $200 million additional dollars in 
State funds for restoration.
    Having said all of this, the total cost and the specificity 
of these actions still contain significant uncertainty, and 
this is a source of concern to all parties. We must also 
remember that implementation of the settlement, including this 
authorization legislation does not imply a limitless Federal 
commitment to funding implementation costs.
    Now, we recognize the importance of addressing unintended 
impacts of third parties in the implementation of the 
settlement, but several steps have been taken to involve them 
today. Water users on the west side of the Central Valley, 
users of tributaries of the San Joaquin River downstream of 
Friant Dam, the exchange contractors, and other parties 
concerned about river management issues reviewed the settlement 
documents before they were executed.
    Numerous briefings were held during 2006, where the 
settling parties explained the proposal in detail, responded to 
questions, and listened to comments. The settling parties made 
modification to some of the documents, and provided the third 
parties with detailed, written responses to their comments. In 
addition, language was added to the legislation before it was 
introduced to strengthen protections for third-party impact.
    Reclamation has worked closely with a group of third-
parties on a Memorandum of Understanding which was signed this 
last February. It articulates their concerns, and commits 
Reclamation to work closely with them throughout the 
implementation of the settlement.
    Finally, in supporting S. 27, the administration remains 
committed to implementing other salmon restoration programs 
along the Pacific Coast. In particular, we will still continue 
to work with the State of California and the Hoopa Valley and 
Yurok tribes to implement the Trinity River Restoration Record 
of Decision.
    Madam Chairman, this concludes my testimony, and I'd be 
happy to answer any questions that you may have, thank you.
    [The prepared statement of Mr. Limbaugh follows:]
Prepared Statement of Mark Limbaugh, Assistant Secretary for Water and 
                  Science, Department of the Interior
    Mr. Chairman and members of the Subcommittee, I appreciate the 
opportunity to appear before you today to discuss S. 27, the San 
Joaquin River Restoration Settlement Act. S. 27 provides authorization 
and funding for the Secretary of the Interior to implement the terms 
and conditions of the Stipulation of Settlement (Settlement) dated 
September 13, 2006, in Natural Resources Defense Council, et al. v. 
Kirk Rodgers, et al., which was approved by the U.S. District Court on 
October 23, 2006. The Department supports S. 27.
    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 Natural 
Resources Defense Council (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 presented to 
resolve this litigation in a way that will both restore the San Joaquin 
River and increase water supply certainty to farmers in the Friant 
Division. My testimony today will provide an overview of the Settlement 
and the importance of this authorizing legislation.
                            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 meet minimum downstream flow requirements and maximize 
water deliveries. As a result, approximately 60 miles of the 153 river 
miles between Friant Dam and the confluence of the Merced River have 
been dried up in most years, except during seasonal flood control 
releases. Prior to construction of Friant Dam, the stretch of river 
downstream of the dam supported a healthy fishery, including salmon 
runs, which the dam effectively eliminated.
    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 the 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 pursuant to Sec. 8 of the Reclamation Act of 1902, 
the federal defendants must operate Friant Dam in accordance with 
California Fish and Game Code Sec. 5937. California Fish and Game Code 
Sec. 5937 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. The District Court did not rule on the Sec. 5937 claim. On 
June 24, 1998, the Ninth Circuit Court of Appeals affirmed most of the 
District Court's rulings but remanded to the District Court the issue 
of the applicability of California Fish and Game Code Sec. 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 California Fish and Game Code 
Sec. 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 Dianne 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 Parties filed the Settlement, including proposed Federal 
implementing legislation, with the Court. The Settlement Agreement is 
based on two goals and objectives:

          1. To restore and maintain fish populations in ``good 
        condition'' 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 populations of salmon 
        and other fish.
          2. To reduce or avoid adverse water supply impacts to all of 
        the Friant Division longterm contractors that may result from 
        the Interim Flows and Restoration Flows provided for in the 
        Settlement.
                            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. This action would be taken to restore and maintain fish 
populations in good condition, including naturally reproducing and 
self-sustaining populations of Chinook salmon and other fish in the 
153-mile stretch of the river between Friant Dam and the confluence of 
the Merced River.
                         water management goal
    Recognizing that the Settlement's 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 
farms that currently rely on these supplies. One million acres of some 
of the most productive farmland in the country as well as many towns 
and cities along the southern San Joaquin Valley's 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 
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 December 31st, 2025 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.
                       importance of legislation
    As the implementation of this historic Settlement begins, I can't 
emphasize enough how important it is for Federal authorizing 
legislation to be approved and signed into law. Passing this 
legislation soon will demonstrate the kind of support and commitment 
from the Federal government that is necessary to prove we are serious 
about making this settlement and its twin goals a reality. Some initial 
funding and authority exists for Interior agencies to work with our 
State partners to initiate planning and environmental review 
activities, which we have already begun to do. Without authorizing 
legislation such as S. 27, however, we lack sufficient authority to 
implement the actions in the Settlement. Moreover, beginning in fiscal 
year 2008 we will have insufficient funding to stay on the aggressive 
schedule called for in the Settlement to complete the necessary 
planning and environmental reviews for initiating construction 
activities and ultimately restoring flows into the San Joaquin River 
from Friant Dam. Such delays would send the wrong message regarding the 
Federal support for implementation.
                          restoration funding
    The proposed legislation is consistent with the recommendation in 
the Settlement regarding funding sources to support implementation of 
these projects, including the use of current payments from farmers and 
cities served by Friant Dam, redirection of Federal funds from the 
Reclamation Fund, state bond initiatives, and authorization for 
additional Federal appropriations as long as there is a non-Federal 
cost share. Funds are to be used to meet both the Water Management and 
Restoration goals.
    More specifically, the proposed legislation, consistent with the 
Settlement, allows for the continuation of and the dedication of the 
``Friant Surcharge,'' an environmental fee charged pursuant to the 
Central Valley Project Improvement Act (CVPIA) of $7 per acre foot of 
water delivered to Friant Contractors. This fee is expected to average 
about $8 million per year ($160 million over the 20-year period). Up to 
$2 million annually of other CVPIA Restoration Fund payments made by 
Friant water users under the CVPIA ($40 million over the 20-year 
period) would also be directed for implementation of the Settlement.
    The legislation also calls for the dedication of the capital 
component of water rates paid by Friant Division water users to the 
Settlement implementation (approximately $220-240 million over the 20-
year period). These are funds that at present go to the Reclamation 
Fund in the U.S. Treasury to repay the capital costs of construction in 
the Friant Division. Under this bill, these funds would be deposited 
into a newly established San Joaquin River Restoration Fund to pay 
directly for implementing the Settlement. The Settlement provides that 
the monies contributed to the Settlement from the Friant Surcharge 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.
    In addition, the legislation authorizes up to $250 million of 
additional Federal appropriations to contribute to the implementation 
and requires a non-federal cost-share of an equivalent amount.
    Funding by the State of California will also support the 
Settlement. Last November, State propositions 84 and 1e were passed by 
the California voters and should provide about $200 million of State 
bond funds for projects that will directly contribute to the 
restoration efforts.
    Although the Settling Parties have agreed on a suite of actions to 
be taken to restore flows and salmon runs, the total cost and the 
specificity of those actions still contain significant uncertainty. The 
Parties anticipate that a multi-agency technical team established to 
implement the Settlement would develop additional design details 
typically found in a Feasibility-level study needed to take the 
proposed actions. The Parties also anticipate that the estimated costs 
projected to be required to meet the restoration goal (i.e. $250 
million-$800 million) would be further refined during the initial phase 
of implementation.
    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 the Federal appropriations proposed in this 
legislation, in addition to the funding sources already described, may 
be integral to implementing the settlement. However, the Administration 
is not willing to commit to seeking any particular level of funding 
until further planning and engineering studies are completed that 
identify with more certainty the total estimated cost of this Program. 
All the parties to the Settlement must also realize that implementation 
of this settlement, including this authorizing legislation, does not 
imply a limitless Federal commitment to fund whatever it costs.
                        status of implementation
    As already mentioned, some initial funding and authority exists for 
Interior to work with our State partners to initiate planning and 
environmental review activities, and we have been doing just that. 
Interior, through Reclamation and the Fish and Wildlife Service, is 
working with the other Settling Parties, the State of California, the 
affected Third Parties (discussed below), and other Federal agencies 
regarding the implementation process and other related matters. A 
multi-agency Program Management Team including California Dept. of 
Water Resources, California Dept. of Fish and Game, and U.S. Fish and 
Wildlife Service, National Marine Fisheries Service, and Reclamation 
have begun efforts to initiate an implementation process, including 
public outreach, planning, design, and environmental reviews. This 
multi-agency team is developing a Program Management Plan (PMP), 
scheduled for completion this Spring, that will describe the 
implementation process, the scope and timeline of the activities, 
studies to be completed, and the process to involve and receive input 
from interested third parties as well as the broader public. The PMP 
will address strategies to meet both the Restoration Goal and the Water 
Management Goal described in the Settlement. As a further demonstration 
of the Administration's commitment to implementing this settlement, the 
President's FY 2008 Budget for Reclamation presumes a re-direction of 
capital repayment receipts away from the Reclamation Fund and into the 
newly-created San Joaquin Restoration Fund; it also presumes the 
allocation $7.5 million of funds from the CVPIA Restoration Fund to the 
San Joaquin Restoration Fund. However, these actions in the Budget 
presume enactment of the legislation.
                             third parties
    We fully recognize and appreciate the importance of involving 
affected third parties in the implementation of the Settlement, and 
several steps have been taken to meaningfully involve them in the 
development and implementation of the Settlement. 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'') took the opportunity to review 
the Settlement documents. In addition, the Settling Parties conducted 
numerous briefings throughout the Central Valley, which were attended 
by approximately 70 Third Party representatives. At those briefings, 
the Settling Parties reviewed the proposed Settlement in detail, 
responded to questions, and listened to comments. Following those 
briefings, a number of entities 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. In addition, language was added to 
the legislation before it was introduced to strengthen protections for 
Third Party interests.
    Since the Settlement was signed and the legislation was drafted, 
the Bureau of Reclamation has been working closely with a group of 
Third Parties with downstream concerns on a Memorandum of Understanding 
(MOU), which was reviewed by the Settling Parties and was signed on 
February 26, 2007 by Reclamation and the Third Parties involved.
    The MOU articulates the interests of these Third Parties and agrees 
that Reclamation will work closely and involve the Third Parties 
throughout the implementation of the Settlement on matters pertaining 
to their interests.
    In supporting this settlement, the Administration remains committed 
to implementing other salmon restoration programs along the Pacific 
coast. The San Joaquin settlement that would be implemented by S. 27 
provides a model of how stakeholders can come together to rebuild 
historic salmon populations and restore communities. We are open to 
exploring how this model could be used to help implement other similar 
restoration programs.
                               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. S. 27 would provide the 
federal authorization and funding needed to move into implementation. 
We believe that this historic agreement is the start of a truly 
collaborative process that will result in a restored river for all. I 
strongly recommend that this committee act swiftly on this legislation 
to allow the Federal government to move forward without delay and to 
send a message of support to the Parties and our implementing partners.
    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.

    Senator Cantwell. Thank you, Mr. Limbaugh, for that 
testimony.
    You indicate that the feasibility level designs have not 
been done on actions needed to restore the salmon runs, 
particularly on channel restoration. In thinking about the 
funding, obviously, this is something that, I think comes to 
mind on this. Is it clear that the funding in the bill, which I 
think is about $650 million of Federal, and $250 million of 
State dollars, will be sufficient to complete the activities 
that are required in the settlement?
    Mr. Limbaugh. Madam Chairman, we believe so. There is a 
range of possibilities. The State has looked at a total cost of 
the settlement and the legislation basically comports to within 
that range of total cost. There are many studies that are out 
there that are actually record in the litigation that could be 
used to look at further designs, further studies, and looking 
at implementing restoration and water management goals that 
contemplate it by itself.
    Senator Cantwell. If additional funding is necessary to 
complete the actions of the settlement and such funds aren't 
provided, will there be a breach in the settlement? How do we 
resolve that?
    Mr. Limbaugh. Senator, the settlement contemplates the 
direct funding approach, taking existing funds that are being 
paid for by California parties and putting them into a 
Restoration Fund, so from the outset, the expectation is that 
we will have ``X'' number of dollars, and as I highlighted in 
my testimony, about $8 million a year from the surcharge, and 
about, between $10 million and $12 million a year from the 
capital repayment to actually put on the grant, and any 
additional funds, I would think, as time arises, we have agreed 
to allow the settlement to--and the legislation to include an 
authorization of up to $250 million of Federal funding through 
appropriations process to be matched by other non-Federal 
funds.
    It is our understanding that this should be enough funding 
to accomplish the goals of the settlement.
    Senator Cantwell. Have you been in discussion with NOAH and 
Fish and Wildlife Services, and California Fish and Game about 
evaluations of the Restoration Plan? About flows and 
restoration habitats?
    Mr. Limbaugh. Senator, it's my understanding that Fish and 
Wildlife Service has been involved from the start, it's also my 
understanding that NOAH Fisheries has been involved to the 
extent that they could be, and as far as California Fish and 
Game, I think so. So, we have been involved with all of those 
agencies, and throughout this process in looking at the 
possibilities of implementing, so----
    Senator Cantwell. How would you characterize the Interior 
Department's view of the settlement in the successful results 
that you think might be achieved? I mean, are you very excited 
about the settlement, you think that what's been outlined here, 
you're very enthusiastic about what you think the results of 
that would be and returning, creating a salmon fishery again?
    Mr. Limbaugh. Well, Senator, that's a very good question 
and I believe we are excited about the settlement.
    Senator Cantwell. I mean, if you had to give it a grade, 
what would you give it?
    Mr. Limbaugh. Well, we don't see these kinds of 
opportunities every day. You have an 18-year old litigation 
risk that has been out there, parties fighting amongst 
themselves for many years, that does not provide for the 
certainty that people need to go on with their lives, and to 
make investments and to look to the future in terms of how 
their environment's going to be for their grandchildren and 
their great-grandchildren.
    And so, when you look at that opportunity that we have to 
actually implement something that people have worked out on the 
ground, and that can have a vision, that can work together, and 
get rid of this black cloud that hangs over some of the water 
users, or the other side, the other parties to the settlement 
terms of restoring the river, I think moving forward and having 
some positive relations and positive benefits to this basin and 
to the State of California, I think it's a grade A.
    Senator Cantwell. And, in regards to salmon recovery--I 
guess I'm asking as someone representing the Department of the 
Interior and in consultation with these other Federal agencies, 
and obviously, you know, wearing my Pacific Northwest hat, we 
always want to make sure that the agencies are fighting for 
good science, and looking at these plans as they believe that 
they will be successful. And so, I very much appreciate people 
coming together, as they have, but I want to understand how 
enthusiastic you are about the requirements, or the 
implications as it relates to salmon recovery.
    Mr. Limbaugh. Well, the recovery of the fishery, Senator, 
is part of the uncertainties that I've mentioned. To take a 
river that's been dry for 60 years, or 40 years--however long 
it's been, you know, in and out, intermittently dried up.
    It'll be interesting to see whether we can get a viable 
fishery. But the point is, is that we're working towards that 
goal, we do have the fisheries agencies involved, I believe 
they're excited about this settlement, and I think it's 
basically a much better approach than what we have now. And so, 
I think, if you look to the possibility of restoring a salmon 
run on the San Joaquin, this settlement gets us a lot closer 
than any other effort that's out there.
    Senator Cantwell. I do have some more questions, Senator 
Corker, do you have any questions?
    Senator Corker. I just have a couple, thank you.
    You talked about the opportunity that this is, and it does 
sound like a unique opportunity, I also know after being around 
here a few months, there are opportunities every day to fund 
things. Is the administration willing to budget for the amounts 
of money necessary to see this through?
    Mr. Limbaugh. Senator, the legislation contemplates a 
direct funding stream that's there. While agreeing to further 
appropriations, we certainly at this point do not agree to any 
further budget that's dependent on the necessary cost-sharing 
requirement that's in the appropriations language.
    But, the directed funding, we believe, is enough to get 
this program off the ground, it's something that's already 
going to the Treasury that would simply be directed into that 
local area to restore the River, and accomplish water 
management goals.
    Senator Corker. Well, I guess I'm a little confused--I 
understand about the direct payments, but my understanding was 
also you all were needing to set aside another $10 or $15 
million to go with the State and local match--is that not the 
case?
    Mr. Limbaugh. Well, like I say, Senator, it depends on 
whether the matching dollars are there, I think that's the 
number one thing. If they are, and the need is there, then we 
would certainly take a hard look at budgeting for that funding.
    But, at this time, we only contemplate the directed funding 
to begin this process of getting this restoration underway. In 
other words, I can't commit to future budgets, but I can commit 
to supporting the terms of the settlement, and supporting the 
authorization of the settlement through the legislation.
    Senator Corker. Do you contemplate, then, the future 
funding will be necessary? This is all--obviously, authorizing 
legislation, but give us your view of what will occur over the 
next 10 or 15 years?
    Mr. Limbaugh. Well, the contemplation that the legislation 
looks at is a combination of some innovative financing, using 
revenue streams to float bonds, or to look at getting some up 
front funding to start the restoration process, so that would 
kick-start this whole program, rather than relying on just so 
much a year.
    And so, as we go forward, we would have to look and see 
what the needs would be. I would think we're looking at--
probably within 5 years, there may be a need for additional 
funding. But, it depends on whether that matching funding is 
there. Again, it's the kind of thing that we would watch, we 
were going to be integrally involved in the Restoration efforts 
through the Bureau of Reclamation, the Fish and Wildlife 
Service, and through the State of California, working together 
to implement this settlement. We would look forward to those 
kinds of decisions in the future, to do this.
    But, at this time, we believe the directed funding is 
enough to get this thing kick started.
    Senator Corker. Just one more question--if you would, just 
briefly describe the tools that you all have available to make 
the water available to the 15,000 farms that are adjacent to 
the river? Talk to us a little bit about the flexibility you 
use to make that available, and also cause it to be a place for 
salmon?
    Mr. Limbaugh. Well, Senator, the legislation and the 
settlement contemplates a water management goal study to look 
at what are the best ways to minimize the impact to the water 
users in the Friant Water Users Authority from the use of water 
agreed to in the settlement to be used for river restoration 
and the salmon fishery. And, we would certainly look at a wide 
variety of projects--I know Senator Feinstein mentioned that 
she directed the Friant Water Users to come up with a report 
that highlighted, I guess, over 60 is what she said--projects 
that could be used to minimize the impact or recycle, restore 
that water to the farmers for their use.
    Some of the tools that I'm familiar with are water banking, 
where you would actually use excess flood flows to bank water 
in the ground, and then pump it back later when you need it, 
others are conservation measures, others are management and 
technology measures that could be used to circulate water 
throughout that project, where it makes sense, and be able to 
utilize that water more efficiently and more effectively, in 
minimizing the impact of the use of the additional water for 
the river restoration.
    So, those are the kinds of tools that I'm familiar with, I 
know that Friant Water Users have an extensive list, we would 
certainly be taking that list under advisement as we look to 
studying this effort, and studying the water management goals, 
come up with some that are doable, that are cost-effective, and 
that will work to make this settlement a sustainable 
settlement.
    Senator Corker. Thank you. It sounds as if--I know this is 
a very, very complex issue and it's taken a lot of years and 
great effort by the Senators and others to work this out, it 
sounds very much like it's kind of a work in progress, and a 
lot of it will be determined as it moves ahead, is that 
correct?
    Mr. Limbaugh. Senator, yes, I think it is a work in 
progress, I also look at it as an opportunity to bring, to help 
keep the parties together, to move forward together, to have a 
vision together that will get us out of the courts, and into 
managing the resource for the benefit of the future 
generations, for the benefit of the fishery, and for the 
benefit of those farm families that are under the gun right now 
in terms of where the court seems to be going.
    So, I do believe that it will be a work in progress, as 
many settlements are, but I tell you, it's much better pathway 
to go than to continue to duke it out in court.
    Senator Cantwell. Thank you, Senator Corker, very much.
    We've had a vote that started a few minutes ago, and so 
we're going to try to wrap up this panel and then have a 15-
minute recess before we start the next panel, but if I could, 
Mr. Limbaugh, get you to just give me an idea on a couple of 
things, as succinctly as you can, that I can cover, but--you 
were just discussing the water management plan, and obviously, 
there is going to be reduced water supply. Do you think that we 
have the right plan for the substantial part of the shortage 
that's going to occur, you know, in the Friant Water Users 
area?
    Mr. Limbaugh. Senator, I think the settlement contemplates 
the plan to be started once the settlement and the legislation 
is complete, but we do have a head start with the work that the 
Friant Water Users have done, the Bureau of Reclamation 
certainly has some studies from the past that have looked at 
how they could better manage water in the Friant unit----
    Senator Cantwell. But the Department of the Interior 
believes that there is enough there for a mitigation plan? You 
think it'll be mitigated?
    Mr. Limbaugh. The study is there to be done, I believe that 
the mitigation can be accomplished with the tools that we've 
noted.
    Senator Cantwell. Okay, and what about the Hoopa Valley 
Tribe? Is that the correct pronunciation?
    Mr. Limbaugh. Yes.
    Senator Cantwell. Is it your view that S. 27 raises a 
conflict of interest between the Federal trust responsibility 
for Trinity River fisheries in the San Joaquin settlement?
    Mr. Limbaugh. No, I don't believe so. We continue to fund 
the efforts on the Trinity, we have looked at both the 
Restoration Fund, and the Water Related Resources Account to 
fund those efforts on the Trinity, and we continue to be 
committed to implementing the Record of Decision on the 
Trinity, so, they're really two separate projects. Obviously, 
funding is tight, we have to do with what we have to do with, 
but we will certainly work very hard to ensure that the Trinity 
River Record of Decision is completed.
    Senator Cantwell. Okay, and in addition to S. 27, is the 
administration open to using surplus Reclamation Fund revenues 
to meet the growing number of critical water needs in the West?
    Mr. Limbaugh. Well, Senator, the Reclamation Fund is 
controlled by the Congress, and----
    Senator Cantwell. Your opinion?
    Mr. Limbaugh. Pardon me?
    Senator Cantwell. In your opinion, do you think we should 
use those funds for the various water needs.
    Mr. Limbaugh. My opinion doesn't count in this instance, 
Senator.
    Senator Cantwell. Well, I think this is an important issue, 
we're probably going to have a follow-up hearing on this. But, 
I think there are critical water needs throughout the West, and 
how we can best meet those needs, this obviously shows you what 
happens when we don't plan on a broad basis.
    And, obviously, no one wants to say that the solutions to 
these issues are many years of conflicts, and then settlement. 
So if there are ways that everybody can work on the front end 
of the problem, knowing what we're facing, and maybe some 
resources to do that.
    Sitting on the Energy Committee now for several years, it 
always amazes me every time a water bill is brought forth, 
every member of the committee participates with their own 
examples, and frustrations of what's happening in their areas. 
So, we'll look forward to having you back, maybe with more----
    Mr. Limbaugh. Senator, I just want to add--I look forward 
to working with you on that, because I think those are very 
important issues and certainly we need to work together on 
trying to figure out a pathway forward on a lot of those 
issues.
    Senator Cantwell. And just as succinctly as you can say--
what happens if we don't pass this bill? Obviously, we're 
saying that the implications of not doing this this year are 
severe, so----
    Mr. Limbaugh. Well, Senator, certainly time is of the 
essence on the settlement, to get it going. It's been 18 years. 
I'm not sure how the settling, other settling parties feel, 
you'll have to ask them, but in terms of not passing the bill, 
I don't believe we have a settlement until the legislation is 
passed.
    Senator Cantwell. Thank you.
    So, the subcommittee will be recessed for 15 minutes, 
hopefully we'll reconvene at 11 a.m.
    [Recess.]
    Senator Cantwell. And we'll welcome our second panel to 
testify.
    I want to mention a housekeeping issue, that the 
subcommittee has received a number of additional statements, 
exhibits, testimonies regarding the bill before us today, those 
items, as well as written submissions of all of the witnesses 
testifying will be made part of the record.
    So, welcome, gentlemen. We have Mr. Dan Dooley, 
representing the Friant Water Users Authority; Mr. Howle Candee 
of the Natural Resources Defense Council; Joe Grindstaff with 
the State of California; Steve Chedester with the San Joaquin 
River Exchange Contractors Authority; Mr. Ken Robbins, 
representing the Merced Irrigation District; and Allen Ishida, 
with the Tulare County board of supervisors.
    Thank you, gentlemen, very much for being here, we welcome 
each of you, and I think, since you're lined up that way, Mr. 
Dooley, do you want to begin?

STATEMENT OF DANIEL M. DOOLEY, ESQ., REPRESENTING FRIANT WATER 
                  USERS AUTHORITY, LINDSAY, CA

    Mr. Dooley. Thank you, Madam Chair, it's a pleasure to be 
here, and I look forward to trying to respond to any questions 
you might have.
    I'm Dan Dooley, of Dooley Herr & Peltzer, I represent a 
number of the members of the Friant Water Users Authority which 
is composed of 22 public agency irrigation and water districts 
from the Merced County line on the north, to the southern end 
of Kern County on the south. Each of those members, public 
agencies, is represented by an elected board of farmer-
directors, and I am pleased to say that they supported this 
settlement unanimously, in proving the terms of the settlement 
last July. Each of those boards of directors considered the 
terms of the settlement, and voted to approve it.
    And I might mention that there are 120 some-odd elected 
board members on those 22 public agencies, there was one no-
vote against the settlement by one of the agencies. So, it's 
uniformly, I think, supported by the farmer board members of 
the people I'm representing today.
    You've heard a lot about the 18 years of litigation, I'm 
one of the people who's been involved for all of those 18 
years. And it has been a very contentious battle, obviously the 
stakes were very high. And there have been, I think, a couple 
of benchmark determinations that have caused my clients to 
believe that it was time to consider a settlement.
    Particularly, in 1998 a decision of the trial court was 
appealed to the 9th Circuit, where he had determined that the 
State law that requires the release of the water for fishery 
was one of the Federal--or was one of the State laws that was 
applicable to the Reclamation project, under section 8 of the 
1902 Reclamation Act.
    There's been a lot of speculation that this, a case, if 
we'd gone to trial would be appealed to the Supreme Court, and 
the Supreme Court would rule in our favor. Candidly, we filed a 
writ of certiorari on that Federal question in 1998, and the 
Supreme Court did not take the case. So, the Federal question 
has essentially been resolved, and avenues of appeal are non-
existent.
    So, what we're confronting now is the implementation of the 
State law, and after the court ruled that the Bureau of 
Reclamation had violated the State statute by not releasing 
enough flows for fisheries downstream of the dam, he then 
scheduled a trial on the remedy, which is, how much water? And, 
it was in preparation for that trial that it became clear to us 
in the exchange of technical reports among our experts, that 
there was an opportunity to discuss settlement.
    And so, that's why we got to this point. We were looking 
for certainty. We wanted to know how much water we had from 
year to year, and not have that amount be regulated annually by 
a court that had retained jurisdiction to implement a judgment, 
and not have certainty as to our water supply.
    And so what this settlement does for the Friant Water Users 
is, it gives us a cap on how much water we have to provide, in 
particular hydrologic circumstances, so that we know from year 
to year how much water is available to us, and how much is 
required to restore the river.
    It also caps our financial obligations at levels that we've 
determined are acceptable, and those financial obligations are 
redirected, in some cases, to support the implementation of the 
settlement. And, there is an independent water management goal 
that's been referred to, and we believe that the worse-case 
scenario of how much water we would lose--which is about 15 
percent of our historic deliveries--can be substantially 
reduced by the implementation of additional groundwater 
management programs, water management programs, and exchange 
programs among and between various water users. That, by the 
implementation of those programs, we will substantially reduce 
the water supply impact on our client.
    And, Senator Feinstein referred to a report that she 
requested that the Friant Water Users prepare, and I have a 
copy of this report, which I'd like to offer for the record of 
this hearing, to make sure that your committee staff receives 
sufficient copies of it. This is the report that details a 
variety of water management programs that we believe can be 
utilized to offset the water supply impacts on the Friant 
farmers.
    I think in the final analysis, I would say that what all of 
the parties realized is that we were more apt to minimize water 
supply impact and have a successful restoration program if we 
were working together, rather than fighting the implementation 
of a court judgment.
    And, it took us 18 years to get to that point, but I think 
I can tell you that the Friant Water Users Authority 
enthusiastically supports the implementation of this settlement 
as an alternative to the litigation, and we respectfully 
request that you approve and move forward S. 27, which has a 
number of provisions that are necessary to implement the 
settlement.
    Thank you very much, and I'm obviously available for 
questions.
    [The prepared statement of Mr. Dooley follows:]
Prepared Statement of Daniel M. Dooley, Dooley Herr & Peltzer, LLP,\1\ 
         Representing Friant Water Users Authority, Lindsay, CA
    Madam Chair and members of the subcommittee, it is an honor and 
privilege to appear before this Committee, and to ask your support for 
legislation implementing an historic agreement that resolves a long-
standing conflict on the San Joaquin River. I am Daniel M. Dooley, a 
partner in Dooley Herr & Peltzer, LLP. I serve as general counsel for 
many of the irrigation and water districts that compose the Friant 
Water Users Authority. Along with Kole Upton, Chairman of the Friant 
Water Users Authority, I was a principal negotiator of this historic 
Settlement of the 18-year-old lawsuit known as NRDC, et al. v. Rodgers, 
et al. Mr. Upton was unable to be here but has provided a written 
statement, which I ask be included in the record of this hearing.
---------------------------------------------------------------------------
    \1\ DOOLEY HERR & PELTZER, LLP represents the Fresno Irrigation 
District, Lewis Creek Water District, Lower Tule River Irrigation 
District, Porterville Irrigation District, Saucelito Irrigation 
District, Stone Corral Irrigation District, Tea Pot Dome Water 
District, and Tulare Irrigation District, all of whom are long-term 
Friant Division Central Valley Project water contractors. Additionally, 
Dooley Herr & Peltzer, LLP represents the Hill's Valley Irrigation 
District, Pixley Irrigation District, and the Tri-Valley Water 
District, all of which are long-term Cross Valley Canal Central Valley 
Project water contractors.
---------------------------------------------------------------------------
    On September 13, 2006, 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, documents 
were being electronically filed within the U.S. District Court of Judge 
Lawrence K. Karlton to settle the San Joaquin River litigation that has 
been so contentious, and which has placed such a dark cloud over 
Friant's 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 is not perfect, but it is by 
far the most practical option for each of the parties, and particularly 
for the members of the Friant Water Users Authority and the water users 
they serve.
    I commend the legislators and policy makers--Federal, State, and 
Local--who have done so much to reach this remarkable point in time. In 
particular, Madam Chair, the settling parties and the people and 
organizations we represent are grateful for the leading roles that 
Senator Feinstein along with Congressman Radanovich 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.
    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 
Valley's East Side. The Friant Division sustains underground water 
supplies relied upon by residents, businesses and industries in the 
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.
    The Friant interests were motivated to find a way to settle the 
NRDC's lawsuit over the San Joaquin River because of our determination 
to preserve the valley's way of life. Friant Dam and water delivered 
through the Madera and Friant-Kern canals have always provided a great 
deal of opportunity. For the past 18 years, the water supply of water 
from Friant has been under a dark cloud. We have had every reason to 
believe that those who farm and the communities that exist because of 
Friant could end up losing all or a major portion of their water 
through a judge's decision in the NRDC case or because of some other 
challenge.
    Such a possibility was and is unacceptable. Farmers cannot farm 
without an adequate and affordable water supply. Further, farmers must 
have some certainty before committing to plant a crop. As this case 
began down a fast track toward trial to determine how much water was 
required to restore the river, we were provided with an opportunity to 
sit down and try again to reach a mutually agreeable settlement.
                               background
    It goes without saying that this case has been seemingly endless, 
frequently frustrating, incredibly challenging, internally complicated, 
often controversial and always expensive.
    It began in 1988 just as the U.S. Bureau of Reclamation was 
beginning to renew Friant's long-term 40-year contracts. NRDC and its 
coalition of environmental and fishing interests challenged the 
government's decision to renew Friant water service contracts without 
an Environmental Impact Statement. Of course, it didn't stay that 
simple. NRDC's 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 still another contended that the 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 issue--the most crucial of all to 
Friant users--came to be the litigation's focus over the past several 
years, especially during an earlier four-year settlement effort that 
was, unfortunately, not successful.
    After the 9th Circuit Court of Appeals ruled that the application 
of the state law to Friant Dam was not facially preempted (and the 
United States Supreme Court denied a writ seeking review), 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. The trial court assigned liability to the 
Bureau of Reclamation. The court never determined how much water would 
be needed to satisfy the state law or whether that amount would be so 
large that it would be preempted by the federal law, but set the case 
for a trial that was to have started in February 2006 to determine the 
``remedies''--the amount of the releases. In 2005, the parties began 
preparing for that trial and, in the process, gained valuable new 
scientific information from the expert reports prepared by our 
respective trial witnesses about possible restoration strategies.
    The judge admonished the parties that the law did not permit him to 
finely tune a solution in the way the parties could through a 
negotiated settlement. The judge's admonition resonated with the Friant 
contractors. It seemed to say what many of us had long suspected--that 
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 wasn't 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. The judge would likely have retained jurisdiction to increase 
water releases in order to accomplish the restoration. There was, 
however, a strong likelihood that Friant's 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 fall of 2005 when Senator Feinstein and 
Congressman Radanovich began a non-partisan effort to get Friant, NRDC 
and the government to try again to negotiate a mutually agreeable 
Settlement. It should be obvious that Mrs. Feinstein and Mr. Radanovich 
were amazingly persuasive! They asked the parties to respect two 
critical principles. The first was to respect the need for water supply 
and financial certainty in the Friant community. The second was to 
respect the need for certainty that the restoration effort would 
actually occur. The concept was a good old-fashioned compromise.
    In exchange for restoring the San Joaquin River below Friant Dam, 
Friant's new water dedication for the fishery's needs would be capped 
at certain amounts based upon hydrologic conditions. That instantly 
provided Friant water users with what had long been missing in prior 
settlement discussions--a 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 
for Restoration Flows. And, yes, it represents water that our already 
water-short area can't afford to lose. Friant also recognized that the 
cap on water for Restoration Flows would remove what promised to be 
years of continued uncertainty over the Friant water supply that would 
result in socioeconomic disruption of the eastern San Joaquin Valley 
if, after trial, the judge ordered water releases and retained 
jurisdiction to modify restoration flows annually.
    Of equal importance to that certainty and the river's restoration 
was development of the Settlement's unique means of using good, 
innovative water management to provide means to recover, re-use 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 Friant's financial contribution to river 
restoration at present levels--which add up to tens of millions of 
dollars each year paid into the CVP Improvement Act's Restoration Fund 
and Friant Surcharge.
    By April of 2006, 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, the attorneys announced 
that they had agreed to a Settlement in principle and would recommend 
approval to each of the constituencies.
                        the settlement agreement
    The Settlement Agreement itself is constructed around two 
important, equal and parallel 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% of the daily 
        hydrograph and can be further augmented with water purchased 
        from willing sellers. Procedures are also specified for 
        flexible management of Restoration Flows to account for 
        temperature and biological factors so that implementation of 
        the Settlement will avoid causing harm to other downstream 
        fishery programs. The flow schedule can't 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 Settlement's terms and 
        all applicable laws, agreements and environmental policies. One 
        example of the type of program that Friant believes would be 
        included in this plan would be repair work on the Friant-Kern 
        and Madera Canals to bring these conveyance facilities back to 
        their originally designed capacities in order to facilitate the 
        transfer and/or exchange of water.
   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 long-term 
        contractors providing water for Restoration Flows will be able 
        to purchase 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 Settlement's water supply 
        impacts.

    Some of the Settlement's 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. It should also be noted that Proposition 84 
        was approved by the California voters in November of 2006 and 
        includes $100 million for San Joaquin River restoration.
   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 Friant's obligations at those amounts. The 
        Friant Surcharge would be dedicated to implementing the 
        settlement, as would Friant's capital repayment portion of CVP 
        water rate payments. 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, is anticipated. Funding 
        identified in the Settlement will 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.
   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. Further, and as a 
        result of a series of intense negotiations last September, a 
        number of changes and additions were agreed to the legislation 
        before you today; these changes resolved the third party 
        concerns, and all participating in those discussions have 
        signed a pledge that as a result of the changes, they will 
        support the Settlement and the legislation and oppose changes 
        that are not agreed to by all of the parties.
   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, what river channel and fish passage improvements will 
        be made, how reintroduction of salmon will be accomplished, how 
        and when interim flows releases will be made, and the 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. Friant and NRDC have identified a candidate for the 
        Restoration Administrator position and are in the process of 
        securing his appointment. 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. Two members will 
        represent ex officio the two California agencies primarily 
        involved with implementation of the Settlement, the California 
        Department of Water Resources and the California Department of 
        Fish and Game. Terms are to be for three years.
   Long-Term Friant Water Service Contract Amendments: When the 
        Friant Division's 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. Friant's 
        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.
                          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 Settlement contains 
proposed legislative language. It is referred to as the ``San Joaquin 
River Settlement Act.'' Passage of this legislation in substantially 
the same form as has been agreed to by the parties signing the pledge 
is critical because any party could void the Settlement if the 
necessary legislation were not enacted on a timely basis. Further, 
State of California funds to implement the Settlement are now 
available, and additional funds will be available on July 1, 2007. 
Enactment of this legislation is critical to effectively utilize the 
State funds and to keep implementation of the Settlement on the 
admittedly aggressive schedule agreed to by the parties.
                   mitigation of water supply impacts
    The Friant Water Users have carefully evaluated the water supply 
delivery impacts of restoring Restoration Flows to the San Joaquin 
River. In addition to flood flows and surplus water supplies, Friant 
estimates the average annual impacts to historic deliveries to long-
term Friant contractors to be approximately 170,000 acre feet. 
Unmitigated, this annual impact would have significant adverse impacts 
on the Friant service area and the communities existing therein. These 
potential impacts are of concern to the Friant contractors and many 
community interests along the eastern side of the southern San Joaquin 
Valley.
    The Friant Water Users Authority and its member districts have 
undertaken to prepare a report that identifies a number of specific 
programs and projects that could be undertaken to substantially, if not 
completely, mitigate the water supply impacts. Some of provisions of 
the report identify options for recirculation, recapture and reuse of 
water that should be considered by the Secretary of Interior when 
developing the plan required by Paragraph 16 of the Settlement. Other 
provisions identify activities that the Friant Water Users Authority 
and its members are considering to further reduce the direct water 
supply impacts resulting from the initiation of Restoration Flows as 
well as the indirect impacts on the communities in the Friant service 
area. These programs and projects include, but are not limited to:

   Projects and programs that should be considered by the 
        Secretary in developing the plan for recirculation, recapture 
        and reuse of Restoration Flows that is required by the 
        Settlement and the legislation;
   Rehabilitation and enhancement of Friant Division conveyance 
        facilities to permit greater utilization of surplus River water 
        to maximize the effectiveness of integrated regional and 
        district programs and projects;
   Integrated regional management projects and programs that 
        create improved integrated water management activities between 
        districts and among groups of districts; and
   Improved district groundwater banking, conveyance, 
        distribution and water management programs and facilities.

    I offer a report that summarizes these programs and projects and 
includes a detailed exhibit for inclusion into the record of this 
hearing.
                               conclusion
    Settlement of the 18-year-old litigation known as NRDC v. Rodgers 
has been rightly applauded in much of the nation's 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 society's 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.
    In addition to society's 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 the implementation 
        of the Settlement to cause 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 Friant's costs and water releases 
        when they have won so convincingly to date in Judge Karlton's 
        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.
   Some water users 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 
        a ruling unfavorable 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 judge's decisions, including 
        that our contracts should be voided and that California Fish 
        and Game Code Section 5937 should apply to Friant Dam. His 
        ruling was upheld by the Ninth Circuit and the Supreme Court 
        would not take the case.
   The Third Party interests have sought protection and 
        indemnification against unfair water and fiscal costs they 
        assert the Settlement would be inflict upon their constituents. 
        We have addressed their concerns in the legislation before you. 
        It is important to understand that rejection of the Settlement 
        and proceeding to trial would not provide the third parties any 
        of the protections contained in the Settlement and legislation.

    This Settlement, and the legislation before you, is the product of 
literally thousands of hours or arduous negotiation and analysis. All 
parties to the litigation, and third parties who expressed concerns 
about the Settlement originally, have committed enormous good faith 
efforts to structure an agreement that fairly and acceptably balances 
all of the varied interests. Incredibly, we found such a balance. I 
believe this Settlement sets forth a model for resolving complex water 
resource disputes. The last piece is enactment of H.R. 24. I request 
that this Committee move this Bill as quickly as possible so that the 
parties can fully move forward to the challenging task of implementing 
this historic restoration program.
    Thank you.

    Senator Cantwell. Thank you, Mr. Dooley.
    Mr. Candee.

  STATEMENT OF HAMILTON CANDEE, SENIOR ATTORNEY, CO-DIRECTOR, 
 WESTERN WATER PROJECT, NATURAL RESOURCES DEFENSE COUNCIL, SAN 
                         FRANCISCO, CA

    Mr. Candee. Thank you. Good morning. My name is Hamilton 
Candee, and I am a senior attorney with the Natural Resources 
Defense Council and the co-director of our Western Water 
Project in San Francisco.
    Thank you for the opportunity to testify today in support 
of S. 27 to authorize the historic settlement in RDC v. Rogers, 
and to restore the California San Joaquin River.
    For the past 18 years, I've been a counsel of record in 
this case, representing a coalition of 14 environmental and 
fishing groups who, in turn, represent over 2 million people 
nationwide, and 250,000 in California. With me today is Philip 
Atkins-Pattenson, a lawyer at the California firm of Sheppard 
Mullin Richter & Hampton, and together, he and I were 
negotiators during the full year of negotiations that led to 
the settlement.
    The bill pending before the subcommittee will approve and 
help fund a historic settlement agreement and a comprehensive 
restoration process that will bestow benefits on millions of 
Americans, end one of California's longest-running water 
disputes, and also preserve a vibrant agricultural economy in 
one of the country's most significant agricultural regions.
    We are submitting materials for the record that will 
address the terms of the settlement in greater detail, so my 
remarks about the settlement will be very brief.
    However, before I discuss the settlement and the 
legislation, I would like to just say a few words about the San 
Joaquin River itself, how it has been managed for the past 60 
years, and why restoration is so important.
    The San Joaquin is one of California's great rivers, one of 
its largest rivers, and the second-longest river in the State, 
and it's one of two major tributaries to the San Francisco Bay 
Delta, which is the largest estuary on the west coast. The Bay 
Delta is an estuary of international, ecological importance, 
and also the source of drinking water, for over 22 million 
people.
    In the early 20th century, the mighty San Joaquin River 
supported steamboat travel, and teemed with wildlife, including 
one of the largest Chinook salmon populations on the entire 
Pacific coast. By the early 1940's when Friant Dam was built, 
the steamboats were gone and the abundant wildlife had 
diminished, but tens of thousands of spring-run Chinook salmon 
still survived in the river, and in fact, continued to survive 
after the completion of the dam. It wasn't until the Bureau of 
Reclamation began diverting so much water of the dam that 60 
miles of the river downstream were dried up, that the salmon 
finally disappeared.
    For the past half century, over 90 percent of the river's 
flow has been diverted at or immediately below Friant Dam, 
mostly for irrigation purposes. But, as Senator Boxer pointed 
out in her testimony, these diversions have come at a 
tremendous cost to the environment, also to the recreational 
and commercial fishing industries, to ground water levels in 
adjacent areas, and to the lower San Joaquin River in the 
Delta.
    In fact, in the Delta, the de-watering of the upper San 
Joaquin River has contributed to water quality impairments that 
adversely affect farmers and communities in the lower part of 
the river, in San Joaquin County, and to the millions of people 
who rely on the Delta for drinking water.
    But, just as the operation of Friant Dam has contributed to 
these serious problems, the operation of Friant Dam under this 
historic settlement will be part of the solution to these 
problems.
    I have attached to my testimony a number of materials, 
including a summary of the many broad benefits of the 
settlement, an initial list of supporters--which has now grown 
considerably--some of the clippings and editorials in 
California supporting the settlement, as well as statements 
from interested officials and organizations. In fact, support 
is bipartisan, we have strong support from the Governor, from 
the Bush administration, but also from water users throughout 
the State, including the Metropolitan Water District of 
Southern California.
    So we are hopeful that that strong support will help move 
the legislation quickly, because as it was stated earlier in 
the question and answer session, there is a risk that if the 
legislation doesn't pass, we don't have the full authority to 
implement the settlement, the Federal Government may not have 
the money it needs, but in addition, the State money that has 
been committed, the $100 million from Prop 84, and potentially 
another $100 million could be at risk because the State 
legislature is waiting for the Federal money to show up before 
they match it with the State money.
    Before I end, I just want to give a quick list of some of 
the benefits of the settlement which, we believe, will be 
benefits, not only for the State of California, but for all of 
the different stakeholders who have been involved in these 
negotiations.
    First, it will restore continuous flows to the San Joaquin 
River, and all the way down to the Bay Delta, which for 60 
years, basically, the upper river has been disconnected from 
the Bay Delta, so this is a crucial issue.
    Second, it will restore the Central Valley Spring-run 
Chinook salmon, and a number of other fish populations to the 
San Joaquin after a period of 50 years.
    It will provide certainty to the Friant Division long-term 
water contractors, to the specified water releases that are 
actually specified in the settlement. It will provide 
flexibility to the contractors to reduce or avoid their water 
supply impact with the new measures that are called for by the 
settlement as a water management program.
    It will provide protections to the interests of third 
parties, and I should mention that that was a major priority 
for the settling parties, was reaching out to the third parties 
during the settlement negotiations, and then afterwards. As 
Senator Feinstein indicated, that was a big part of what the 
final revisions were to the legislation.
    In short, we urge the committee to pass the legislation as 
quickly as possible, and we thank you for your support.
    [The prepared statement of Mr. Candee follows:]
 Prepared Statement of Hamilton Candee, Senior Attorney, Co-Director, 
     Western Water Project, Natural Resources Defense Council, San 
                             Francisco, CA
    Good morning. My name is Hamilton Candee and I am a senior attorney 
with the Natural Resources Defense Council (NRDC) and the Co-Director 
of NRDC's Western Water Project in San Francisco. Thank you for the 
opportunity to testify today in support of S. 27, a bill to approve and 
authorize the historic Settlement in NRDC v. Rodgers to restore 
California's San Joaquin River. 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 is Philip Atkins-Pattenson, a partner in the California law firm 
of Sheppard Mullin Richter & Hampton, who also represents the NRDC 
Coalition. Both of us were directly involved in the extensive multi-
party negotiations that produced the landmark agreement that is the 
subject of today's hearing.
    The bill pending before the Subcommittee will authorize and help 
fund a historic and comprehensive settlement agreement and restoration 
process which will bestow benefits on millions of Americans while 
ending one of California's longest running water disputes and 
preserving a vibrant agricultural economy in one of the Country's most 
significant agricultural regions. We and others are submitting 
materials for the Record that will address the framework and the 
details of the Settlement in greater detail. However, before I discuss 
either the Settlement or the legislation, I want to first briefly 
describe the San Joaquin River--how it has been managed for the past 60 
years; and why its restoration is so important.
    The San Joaquin is one of California's largest rivers, and 
significantly, is one of two major tributaries to the San Francisco 
Bay-Delta--the largest estuary on the west coast. It is an estuary of 
international ecological importance and the source of drinking water 
for over 22 million people. The San Joaquin River originates in the 
high Sierra, and flows 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 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. 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 1940's 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 river--and in fact, continued 
to survive after completion of Friant Dam. It wasn't 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 river's 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 cost--to 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 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 program 
it provides for, I have attached to my testimony a number of materials, 
including a summary of the broad benefits of this settlement, recent 
news clippings and editorials, and statements of support from 
interested officials and organizations from around California. I would 
ask the Chair's permission to have all of the attachments to my written 
Statement included in the final record of this Hearing.*
---------------------------------------------------------------------------
    * The attachments have been retained in subcommittee files.
---------------------------------------------------------------------------
    A number of the clippings and editorials I have attached are from 
cities and towns in the Delta and they document the vital importance of 
restoring the San Joaquin River to that region. Communities and farmers 
in the Stockton area will see both water quality and water supply 
benefits from the Settlement. And other communities and farmers 
downstream of Friant Dam will also be benefited by a living river 
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 and its threatened 
fisheries desperately need it. And for salmon fishermen and fishing 
communities on California's North Coast whose livelihoods once depended 
on the San Joaquin River's 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. Indeed, 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.
    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. When we first 
announced the Settlement last September, we prepared an initial list of 
supporters, which is included in the Exhibits we have submitted to the 
subcommittee. Since last fall, that list has continued to increase and 
now includes such diverse parties as the Metropolitan Water District of 
Southern California, the Bay Area Council--which is the SF Bay Area's 
leading business association--and the Madera County Farm Bureau. Each 
of their letters of support is also included in the Exhibits.
    Nevertheless, the Settling Parties have recognized that this 
landmark agreement, while supported by the overwhelming majority of 
stakeholders and beneficial to millions of Californians, must be 
carefully implemented to avoid potential adverse impacts to third 
parties. Mindful of that concern, the Settling Parties spent much of 
the past year reaching out to third-party stakeholders, briefing them 
on the proposed settlement, discussing their concerns, and where 
appropriate, modifying the settlement to incorporate their perspectives 
and interests. That effort continued as the settlement effort moved 
from the negotiating table to the Congress last year.
    In this respect, I would like to particularly thank two of the key 
players in producing this Settlement and this legislation, Senator 
Dianne Feinstein and Congressman George Radanovich, who not only 
sponsored the original talks in 2005 that led to the Settlement, but 
have consistently supported the fragile consensus that emerged from 
these talks ever since. And each of them played a critical role last 
fall in identifying and addressing issues of concern to numerous third 
parties, starting with the first congressional hearing on the 
Settlement on September 21, 2006 which was chaired by Congressman 
Radanovich in the House Subcommittee on Water & Power.
    At that hearing, the Subcommittee heard from two panels: the first 
comprised of representatives of the Settling Parties and the State of 
California, and the second comprised of interested third parties. 
Immediately following the hearing, the Settling Parties were invited by 
Senator Feinstein to commence negotiations with a wide range of third 
parties who had asked for revisions to the then-pending proposed 
Settlement legislation to address their concerns about potential 
impacts of the Settlement. These negotiations included several members 
of the House Resources Committee, other interested members of the 
House, both of California's Senators, as well as the various parties 
who testified on the third-party panel on September 21, 2006. 
Significantly, the major water districts in Tulare County that receive 
water from Friant Dam were represented by the Friant Water Users 
Authority, and the Congressmen who primarily represents Tulare County 
was also a participant in the talks. On September 27, 2006, after 
extensive and difficult negotiations in Washington, DC and California, 
the Settling Parties, the State of California, and all the numerous 
third parties that crowded into the Senator's conference room agreed on 
a large number of changes to the proposed legislation. To memorialize 
this remarkable agreement, the parties signed a written Pledge of 
Support, which committed all the signatories to support the Settlement 
and the revised legislation, and to oppose any amendments to the 
revised legislation that are not agreeable to all of the signatories. A 
copy of that Pledge of Support document, along with Senator Feinstein's 
press release announcing the agreement, is submitted with the Exhibits 
to my testimony.
    Subsequently, on October 23, 2006, the Federal Court in Sacramento 
that had presided over the NRDC v. Rodgers litigation for 18 years 
approved the Settlement following a hearing on a formal motion brought 
by the Department of Justice, the Friant Defendants and our Plaintiff 
coalition. The Court approved the Settlement without change after 
considering the views of 13 interested individuals and groups who were 
not parties to the litigation but who were allowed to file amicus 
briefs expressing their views on the Settlement.
    On November 7, 2006, the voters of the State of California passed 
two Initiatives that potentially provide substantial State funding for 
implementation of the Settlement. First, the voters passed Proposition 
84, which contains $100 million explicitly dedicated to implementation 
of the Settlement, as well as numerous other potential funding sources. 
Second, the voters passed Proposition 1E, the flood infrastructure 
bond, which provides several billion dollars in bond funds to upgrade 
the State's flood protection. Because the Settlement calls for flood 
protection upgrades to be implemented along the San Joaquin River, the 
State has informed the Settling Parties that Prop 1E could potentially 
provide tens of millions of dollars in additional State funding towards 
Settlement implementation. In the aggregate, the State anticipates 
providing at least $200 million towards Settlement implementation, as 
explained in the November 30, 2006 Letter from California's Resources 
Secretary Mike Chrisman to Senator Feinstein that is included in the 
Exhibits to my testimony.
    In December, 2006, the Settling Parties and the State of California 
addressed Senator Feinstein's request to revise further the Settlement 
legislation to address the issue of ``cost-sharing'' between non-
Federal sources of funding and the $250 million in new Federal funds 
authorized in the legislation. The Settling Parties were able to 
successfully address the Senator's concerns.
    As a result of these two rounds of consensus discussions to make 
final revisions to the draft legislation, on December 6, 2006, H.R. 
6377 and S. 4084 were introduced in the House and the Senate with 
broad, bi-partisan support, including original cosponsorship by 
Senators Dianne Feinstein and Barbara Boxer and Representatives George 
Radanovich, Dennis Cardoza, Jim Costa, George Miller, Grace Napolitano 
and Richard Pombo. Action was not taken on the bills given the short 
time left in the 109th Congress, but were reintroduced on January 4th 
of this year as H.R. 24 and S. 27, on the first day of the 110th 
Congress, once again with bi-partisan support in the California 
delegation. We thank all of the co-sponsors for their strong support, 
especially Senators Feinstein and Boxer who have been so critical to 
carrying this effort forward.
    This is the background of the legislation that is now pending 
before you. It is unique legislation in that it has the support of the 
Settling Parties--who represent 22 water districts, 14 conservation and 
fishing groups, and 5 federal agencies--as well as a wide array of 
California water users and landowners who were not parties to the 
Settlement but who have now pledged their support for the Settlement 
and this legislation. And it is strongly supported by the State of 
California, which was not a party to the litigation, but has 
nonetheless committed extensive financial and agency resources to the 
implementation of the Settlement. We are also pleased to note that the 
President's FY 08 federal budget, and Governor Schwarzenegger's FY 08 
State budget, both support increased funding for the relevant 
government agencies to implement the Settlement, and the 5 state and 
federal implementing agencies have already begun the implementation 
process.
    In closing, I would like to briefly recap the benefits of passing 
H.R. 24 and fully implementing the Settlement. The Settlement will:

   Restore continuous flows to the San Joaquin River--
        California's second-longest river and one of two main arteries 
        to the Sacramento-San Joaquin River Delta, the source of 
        drinking water for over 22 million Californians;
   Restore the Central Valley Spring-run Chinook salmon, fall 
        run Chinook salmon, and other fish populations to the San 
        Joaquin, much of which had been destroyed by the operation of 
        Friant Dam over the past 60 years;
   Provide certainty to the Friant Division long-term water 
        contractors through the specified water releases provided for 
        in the Settlement;
   Preserve the San Joaquin Valley's strong agricultural 
        economy, while enhancing environmental values in the Valley 
        through restoration of a living river and associated habitat;
   Provide flexibility to the Friant Division long-term 
        contractors to reduce or avoid the water supply impacts 
        resulting from the Settlement through specified water 
        management techniques such as ground water banking, low-cost 
        water in wet years, and other measures;
   Provide protections to the interests of third parties, as 
        included in the current legislation and in the Settlement, and 
        ensuring that all of the settlement provisions will be 
        implemented in accordance with all applicable laws, including 
        the National Environmental Policy Act, the Endangered Species 
        Act, and State law;
   And provide for myriad opportunities for public input and 
        participation during the implementation of the Settlement.

    NRDC, having worked together with the other Settling Parties, the 
State and those third parties who have signed the attached Pledge of 
Support, is extremely proud of what we have accomplished in this 
Settlement and revised legislation. The Federal and State agencies and 
the Settling Parties are already actively involved in the process of 
Settlement implementation. The Settling Parties have also cooperatively 
developed protocols and agreements for public and third party 
participation and input. But it is critical for all of us that we 
obtain passage of this legislation that is pending before you in order 
to fully implement what Secretary Kempthorne and so many other leaders 
have correctly described as an ``historic settlement.'' We ask that 
Congress promptly pass S. 27, the San Joaquin River Restoration 
Settlement Act, so that the San Joaquin River can flow once again and 
all of the benefits of the Settlement can be realized.
    Thank you.

    Senator Cantwell. Thank you.
    Mr. Grindstaff.

 STATEMENT OF P. JOSEPH GRINDSTAFF, DEPUTY SECRETARY FOR WATER 
 POLICY, CALIFORNIA RESOURCES AGENCY AND DIRECTOR, CALIFORNIA 
              BAY-DELTA AUTHORITY, SACRAMENTO, CA

    Mr. Grindstaff. I'm Joe Grindstaff, the deputy secretary 
for water policy, and the director of the California Bay Delta 
Authority, appearing in support of this legislation today, on 
behalf of the State of California.
    This truly is an incredible opportunity for us to resolve a 
very difficult problem. I won't go through my written testimony 
in detail, I do want to point out that the State is committed 
to supporting this effort--financially, technically, in every 
way we can, because it's really important for the State that we 
restore this river.
    We think that there are opportunities, in fact, to deal 
with the water management issues, which have been some of the 
more contentious issues, to help make sure that the impacts are 
minimized, while we obtain the benefits of really restoring a 
river that will have huge benefit as time moves on.
    I won't point out that these are not just short-term 
decisions, but decisions that will go on for the next 50 and 
100 years, and the San Joaquin River in California is really 
important when you look at climate change and potential impacts 
there. The San Joaquin mountains are higher than the mountains 
to the north that, where water is fed to the Sacramento River, 
it's important that we restore this fishery, so that we can 
maintain cold water habitat as time moves forward.
    This is an important thing to do, it's incredibly 
difficult, but we are committed to doing our part, and to 
helping to make it work. Thank you.
    [The prepared statement of Mr. Grindstaff follows:]
Prepared Statement of P. Joseph Grindstaff, Deputy Secretary for Water 
Policy, California Resources Agency and Director, California Bay-Delta 
                       Authority, Sacramento, CA
                              introduction
    Chairman Bingaman and members of the Subcommittee, I appreciate the 
opportunity to appear before you today to discuss S.B. 27, the San 
Joaquin River Restoration Settlement Act. I am here to convey the State 
of California's support for this legislation.
    As my colleague Nancy Saracino testified before the House in March 
of this year, the settlement that S.B. 27 would implement represents 
unprecedented consensus on a process that will have lasting positive 
impacts on the natural environment while protecting farmers and the 
Central Valley economy. The settlement creates a clear obligation to 
the settling parties, but more importantly, an incredible opportunity 
to achieve a historical restoration of a western river.
                  the role of the state of california
    Although not a signatory to the settlement, the State of California 
has many interests in a healthy fishery and the successful restoration 
of the San Joaquin River. To that end, we have already allocated a 
considerable amount of our resources to facilitate restoration of this 
important resource.
    Recognizing the importance of an agreement that could set the stage 
for restoration of the San Joaquin River, the state has expressed its 
support throughout the process that ultimately resulted in the 
settlement to be implemented by S.B. 27. In January of 2006, Governor 
Schwarzenegger sent a letter to Secretary of the Interior Gale Norton, 
in which he conveyed early state support for a solution to the long-
debated future of the San Joaquin River.
    In September of last year, the State of California joined with 
federal agencies and other settling parties to sign a Memorandum of 
Understanding (MOU) to help implement the Stipulation of Settlement. 
Soon after, California Secretary for Resources, Mike Chrisman presented 
testimony at a hearing held by this Subcommittee which reaffirmed the 
strong support of the state for the Settlement Agreement. This 
testimony was followed by a letter from Secretary Chrisman to Senator 
Feinstein on November 30, 2006, which reiterated the state's support 
and outlined the state's financial commitment to the restoration 
process.
    California has already allocated $1.5 million dollars for 
restoration activities in the current budget year. An additional $18.3 
million in funding from prior bonds and Proposition 84, the Safe 
Drinking Water, Water Quality and Supply, Flood Control, River and 
Coastal Protection Bond Act of 2006, has been proposed in the 
Governor's 2007-2008 budget to initiate restoration activities 
consistent with the settlement.
    Furthermore, as pledged in Secretary Chrisman's November letter, 
the state is committed to looking for opportunities under Proposition 
1E, the Disaster Preparedness and Flood Prevention Bond Act of 2006, as 
well as other provisions of Proposition 84, in order to fund multi-
benefit projects in support of the settlement. For example, at least 
$40 million dollars is available under Proposition 84 for water quality 
improvement projects on the San Joaquin River.
              coordination and communication among parties
    State agencies, including the Resources Agency, the Department of 
Water Resources and the Department of Fish and Game, federal 
implementing agencies and the settling parties have already begun 
collaborating to plan, design, fund, and implement actions to support 
the restoration of the San Joaquin River.
    If Congress approves legislation implementing the settlement, the 
Department of the Interior will be tasked with new responsibilities to 
carry out the commitments made in the settlement to resolve the 
longstanding litigation. It will be very important for the state to 
coordinate closely with the Department of Interior to ensure that 
planning on restoration activities is well coordinated and funds spent 
in a way that optimizes the value of the investment of scarce 
resources.
    In addition, it will be important to ensure that a full and open 
public process allows for all interested in the restoration efforts to 
be heard as we move forward. Effective communication and coordination 
among all parties early on and throughout the restoration will be a 
challenge, but it is a challenge which must be met.
                    progress towards implementation
    Concurrent with the settling parties' signing of the settlement, 
the State of California entered into a MOU which then became an 
appendix to the Agreement and filed in federal court. The intent of the 
MOU was to set out the initial framework for state collaboration with 
the settling parties on implementation.
    The MOU included two critical requirements. First, the Secretaries 
of Interior and Commerce, along with the California Secretaries of 
Environmental Protection and Resources, were required to establish a 
process for the state and federal agencies to implement the settlement. 
This requirement is important because the Stipulation of Settlement 
assigns to the Secretary of Interior many restoration tasks that will 
require California's participation and approval for them to be 
achieved. We have established implementation teams with the federal 
government and a process for coordination consistent with this 
requirement in the MOU.
    Second, the state and the settling parties are to establish a 
mechanism to ensure public participation and input into the 
implementation of the settlement. In addition to concern for the 
environmental considerations of the restoration, the State of 
California recognizes that there are many interested third parties 
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.
    Allow me to summarize progress to date in achieving the goals of 
the MOU and settlement as well as significant coordination efforts 
among the state and federal governments, the settling parties and other 
interested and affected entities.
    We are engaged with the settling parties in the process of hiring a 
Restoration Administrator who will be charged with directing the 
program manager, and will have the responsibility of assisting with the 
overall implementation of the agreement. The Technical Advisory 
Committee is also taking shape, Friant and NRDC have already appointed 
representatives, and ex-officio state representatives have been 
identified.
    A five-agency Program Management Team has met on multiple occasions 
and is making progress on a Program Management Plan. The Plan will 
serve as the agencies' agreement for implementation of the restoration 
plan and is expected to be completed by the end of April. A public 
involvement process is being developed by the Program Management Team 
to ensure the opportunity for input and participation throughout the 
development of the plan.
    The state is contracting with a nonprofit entity to oversee the 
funding for the Restoration Administrator as well as other charges 
related to the Technical Advisory Committee and public outreach.
    Finally, work is underway to install additional water quality and 
flow stations along the San Joaquin River for the purpose of monitoring 
restoration efforts as they move forward.
    In conclusion, we are pleased with the progress made towards 
restoration thus far. In order to move forward and to begin to reap the 
rewards of restoration the parties await the critical missing piece 
necessarily for full scale implementation, and that is the proposed 
legislation that is before you today.
                               conclusion
    The restoration of the San Joaquin River will have enduring 
statewide and national significance. The rejuvenation of a critical 
fishery, restoration of devastated habitat, improvements to the water-
delivery network for more than 22 million Californians and the 
irrigation lifeblood for the productive breadbasket that is 
California's Central Valley: this is what we can all look forward to as 
implementation advances.
    A discouragingly long battle in the courts has at last 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.
    Chairman Bingaman and members of the Subcommittee: I urge you to 
consider the paramount significance of this settlement, and I 
respectfully ask for you to support this legislation and make the long 
overdue restoration of the San Joaquin River part of your legacy.
    Thank you.

    Senator Cantwell. Thank you.
    Mr. Chedester.

 STATEMENT OF STEVE CHEDESTER, EXECUTIVE DIRECTOR, SAN JOAQUIN 
   RIVER EXCHANGE CONTRACTORS WATER AUTHORITY, LOS BANOS, CA

    Mr. Chedester. Good morning, Madam Chairman, my name is 
Steve Chedester, I'm the executive director of the San Joaquin 
River Exchange Contractors Water Authority. We're currently 
referred to as the ``Exchange Contractors.'' And we are one of 
those third-parties that are affected--will be affected--by 
this settlement and legislation.
    I'm here today to testify in our support for the S. 27. We 
did testify prior to this on the House Subcommittee on Water 
and Power on September 21 and did provide a letter to the 
subcommittee on March 1 of this year. And, we do have concerns 
with the settlement, but we do provide--we do offer support, 
and we think that if this is implemented as it's crafted, we 
will be protected and mitigated.
    Mitigation, though, is a very big issue to us. The adverse 
impacts to this are substantial, and we believe, though, that 
through the process of the legislative negotiations that were 
talked about earlier by the Senator and others, that we have 
provided the protections and necessary means to make sure that 
our growers and our landowners are protected.
    The Exchange Contractors is a joint powers authority, we 
represent four water agencies, and we irrigate about 240,000 
acres on the west side of the San Joaquin. The majority of the 
river restoration efforts and channel restoration efforts that 
are going to occur because of this are going to occur within 
our service area. So, we do have a very keen interest in what 
happens.
    We will limit our comments to the proposed legislation that 
are particularly important to us. We were not parties to the 
litigation, we were a third-party that was brought in, 
afterwards, and therefore it is settlement of litigation, and 
while it appears to be balanced, it is a compromise. And, with 
that, such goes along with it.
    The proposed settlement would obligate the Bureau of 
Reclamation to release water down the San Joaquin River and to 
reconstruct many parts of the river, to reconstruct facilities 
that are ours for diversion, fish screens, levies and 
mitigations for landowners who will be impacted by this 
implementation of this legislation.
    Costs are an issue, and we believe that we did work out a 
mechanism by which a lot of the costs that will be looked at, 
particularly in Reach 4b, where the river will have to be 
completely restructured, provided a mechanism that a study has 
to be done ahead of time, a report given back to the Secretary 
on how they will design the study, whether it's feasible to go 
that direction or use another direction which is called a 
bypass, the flood channel, and then pursue that if it's proven 
feasible. And that is a very important issue for us, especially 
for those landowners along that stretch of the River.
    We had four major concerns when this was first proposed, 
that is, protection of our water rights, protection from ESA, 
adequate funding to make sure that whatever mitigations are 
proposed can be implemented. We have some examples of the 
Federal Government not being able to finish a project, and we 
want to make sure that the impacts from that don't occur again, 
and that is why we are so vitally concerned with that.
    And then, lastly would be that the third-parties have a way 
to provide input into the restoration effort.
    In February of this year, we were able to complete an MOU 
with the Bureau of Reclamation, us and other third-parties. 
That allowed us to be able to have direct input to the 
settlement and how it is implemented in studies, and that was 
very critical for us, and it's very, it was actually one of the 
keystones for us to be able to go forward, that has occurred.
    I won't recite to you our areas of legislation that are of 
major concern, it's in my written testimony. I would like to 
say, though, in conclusion that we believe that S. 27 is a 
balanced bill. We do believe it protects fish and farms. We 
appreciate the subcommittee's consideration of this legislation 
and your attention to this issue. I ask that both my testimony 
of September 21, 2006, and my letter of March 1, 2007 be 
included in the record, I have provided that to the committee, 
both electronically and hard copy. And again, if you have any 
questions, I'd be happy to answer them.
    [The prepared statement of Mr. Chedester follows:]
Prepared Statement of Steve Chedester, Executive Director, San Joaquin 
       River Exchange Contractors Water Authority, Los Banos, CA
    Good morning, Acting Chairperson Cantwell 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.
    I am testifying here today to offer our comments on S. 27, The San 
Joaquin River Restoration Settlement Act, introduced by Senator 
Feinstein of California. I previously addressed the House Subcommittee 
on Water and Power on September 21, 2006 regarding the proposed San 
Joaquin River settlement. In addition, since I was not able to testify 
at the March 1, 2007 hearing before the House Subcommittee, I sent a 
letter to the Subcommittee indicating our support for the legislation 
and identifying those portions of H.R. 24 that are of particular 
importance to the Exchange Contractors. Over the past several months, 
we have diligently worked with the settling parties and other affected 
third parties to ensure that the adverse impacts of the actions to 
restore the San Joaquin River are mitigated.
    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. We are located along the San Joaquin 
River directly downstream from Friant Dam to the confluence of the 
Merced River. The four agency members include the Central California 
Irrigation District, Columbia Canal Company, Firebaugh Canal Water 
District, and San Luis Canal Company.
    The Exchange Contractors are an essential party to the 
implementation of this legislation as our lands are directly downstream 
of Friant Dam and abut a majority of the San Joaquin River where the 
fish restoration program will be implemented. In addition, our water 
supply facilities and the levees that protect our lands are located in 
this stretch of the river and will be impacted by the new operations 
required to restore the fisheries.
    The comments of the Exchange Contractors are limited to those areas 
of the proposed legislation that are particularly important to us. When 
considering this legislation it is important to keep in mind that it 
will implement a Settlement Agreement negotiated by parties to 
litigation that did not include the Exchange Contractors or many other 
parties, including private landowners, affected by the terms of the 
settlement. Needless to say, while we support the legislation, it is a 
product of compromise.
    The proposed Settlement will obligate the Bureau of Reclamation to 
release water from Friant Dam in order to protect downstream fisheries. 
To make this restoration possible, substantial physical changes need to 
be made both to the river and to facilities downstream of the dam. For 
instance, it will be necessary to rehabilitate and in some places 
restore the river channel so the water can flow and fish will have 
habitat sufficient for their several life stages. In addition, it will 
be essential to protect the downstream water systems and the adjacent 
private property and livelihoods of the farmers and other citizens 
along the river.
    Among the changes to the river that will be needed are in-stream 
improvement measures, rehabilitation of miles of existing levees to 
prevent flooding and seepage, the construction of new levees where none 
exist, reconstruction of water diversion facilities and small dams that 
were not constructed in a manner consistent with the new operating 
regimen that will be required under the settlement, improvements to 
some of the downstream flood by-pass structures, and the construction 
of fish screens.
    The restoration of the San Joaquin River has far reaching impacts 
for all the residents of the San Joaquin Valley and the State. It is 
imperative that the third parties have a voice in this complicated, 
lengthy and costly process. For example, it is of vital importance that 
the landowners along the San Joaquin River in the area known as Reach 
4b have a voice in the restoration process. The San Joaquin River holds 
to a defined channel in its upper reaches, but in the Reach 4b area 
historically it would spread into many ``braided'' channels as it 
reached the flat valley floor. The flows called for in the Settlement 
are exponentially greater than the existing capacity of Reach 4b and 
other reaches and if the river floods in the areas it will severely 
impact the families that live and farm along this stretch. To address 
this concern, the bill requires that the impacts of restoration in 
Reach 4b be studied carefully and completely, and that prior to 
introducing any high level flows a report on the feasibility of 
restoring this section of the river be submitted.
    Cost-benefit is one measure that will have to be considered when 
studying the feasibility of using Reach 4b. It is also important that 
Congress understand the challenge of moving fish through this reach. 
Among these challenges will be the acquisition of 1000's of acres of 
farmlands in order to create a stream channel of sufficient width and 
depth to convey flow of at least 4500 cfs. In addition, new levees will 
be have to be constructed to protect the adjacent lands from surface 
flooding and sub-surface seepage, and a new stream channel will need to 
be constructed in a fish friendly manner.
    The San Joaquin River stretches for miles below the Friant Dam and 
every reach has its own unique characteristics. The proposed 
restoration will affect every mile of the San Joaquin River and there 
are many landowners who will be affected. Therefore, it is essential 
that adequate funds be appropriated from both the federal government 
and the State of California. It is also essential that the affected 
third parties have a place at the table to make sure this program is 
implemented in a manner that mitigates the impacts it causes on 
adjacent private property and facilities owned by others.
    It was a central condition of the Settlement Agreement that there 
be no adverse impacts to third parties. The original draft of the 
proposed legislation accompanying the Settlement Agreement would have 
adversely impacted the Exchange Contractors and others. Fortunately, we 
were able to address these concerns in a constructive manner. With the 
assistance of Senators Dianne Feinstein and Barbara Boxer and House 
Members Radanovich, Cardoza, Costa and Nunez, and former Member Pombo, 
the third parties, the settling parties, representatives from the State 
of California, representatives from agencies of the Departments of 
Commerce and Interior, and the Justice Department, developed over the 
course of weeks of intensive negotiations the key terms of the 
legislation that you are currently considering. As you can appreciate, 
these negotiations were intensive, but we believe have resulted in a 
balanced program.
    The areas of major concern to the Exchange Contractors were:

   protection of the Exchange Contractors' senior water rights;
   coordination and protection of the continued operation of 
        our water supply facilities in a way that would not conflict 
        with the Endangered Species Act;
   the provision of adequate funding for the proposed 
        restoration program so that there would not be a partially 
        completed program similar to the half-completed drainage 
        program; and
   that the third parties would be given an opportunity, on par 
        with that of the settling parties, to provide input into the 
        development and implementation of the restoration program.

    As I stated in my prior testimony before the House Subcommittee, 
``inclusion of the above protections in the . . . legislation is 
essential for our support . . .'' I believe we have essentially 
achieved these protections. In addition, in February of this year we 
completed a memorandum of understanding with the Bureau of Reclamation 
that will provide us with the opportunities for input into the 
implementation of the settlement that we seek. Completion of this MOU 
was an essential component of our support.
    In sum, I believe all of the parties to the legislative 
negotiations and settlement will agree the legislation you are 
considering is a balanced proposal that addresses both the needs for 
fishery restoration and reliable water supply. Of course, in order to 
maintain this balance, it is essential that sufficient funds be 
appropriated to achieve the goals of the restoration program.
    While I will not recite to you here those areas of the legislation 
that are of particular concern to the Exchange Contractors and 
downstream landowners, my written testimony does specifically identify 
those provisions that are essential to our support of this program. I 
will note that other parties have provisions that are essential to 
their support, and as such, this legislation is a package. If the 
substance of the legislation is significantly changed, parties may no 
longer be in a position to remain supportive.
    The provisions of key importance to the Exchange Contractors are:

   Water supplies above that contributed by the Friant Unit 
        will only come from willing sellers and not by eminent domain. 
        (Sec. 4(a)(3))
   The subsequent use of water released from the Friant Unit 
        will be made in a manner consistent with California water law. 
        (Sec. 4(a)(4)(B))
   The Secretary of the Interior will enter into a MOU with the 
        third parties. (Sec. 4(b)(2))
   Prior to implementing measures to construct, improve, 
        operate or maintain downstream facilities, the Secretary will 
        identify the impacts and mitigation measures that must be 
        implemented in order to mitigate impacts on adjacent and 
        downstream water users and landowners. (Sec. 4(d))
   The settlement will not have any impact on, amend or modify 
        the rights of the Exchange Contractors under their exchange 
        contract. (Sec. 4(g))
   If the Secretary needs to acquire property in order to 
        implement the settlement, in the first instance, the Secretary 
        will seek to acquire property from willing sellers. And, if 
        after acquiring property through an eminent domain it is 
        determined that the property is not needed, the Secretary will 
        offer the property back to the owners from whom it was taken. 
        (Sec. 5(b)(1) and (2) and Sec. 5(c)(2))
   The recognition in section 7 that the settlement comprises 
        the comprehensive plan for the reestablishment of fisheries in 
        the San Joaquin River pursuant to Section 3406(c)(1) of the 
        Reclamation Projects Authorization and Adjustment Act of 1992, 
        commonly referred to as the Central Valley Project Improvement 
        Act or CVPIA. (Public Law 102-575; 106 Stat. 4721) (Sec. 7)
   The legislation authorizes funds that together with funds 
        from the Friant contractors and the State of California should 
        be sufficient to address rehabilitation of that portion of the 
        San Joaquin River upstream of the area known as Reach 4b. (Sec. 
        9)
   The legislation prohibits the shifting of costs to implement 
        this restoration program to third parties. (Sec. 9(a)(3))
   Reach 4b will not be developed for the passage of fish until 
        a full study of the feasibility and practicality of expanding 
        this stretch of the river is completed, including cost 
        estimates, and addressing the question of whether it is cost-
        effective. (Sec. 9(g))
   Designation of the spring run Chinook salmon to be 
        reintroduced into the San Joaquin River as an experimental 
        population pursuant to Section 10(J) of the Endangered Species 
        Act. (Sec. 10(b))

    One item that I did not list above, but which is relevant to the 
successful implementation of this legislation is that in the event the 
Secretary acts in an unreasonable manner, we will have a right to 
challenge that action under the Administrative Procedures Act. (Sec. 
8(b))
    In conclusion, it is the view of the Exchange Contractors that S. 
27 is a balanced bill that protects the fish and the farmers. We are 
appreciative of the Subcommittee's consideration of this legislation 
and your attention to the issues of concern to us. For your 
convenience, I ask that both my testimony before the House Subcommittee 
on Water and Power and my letter of March 1, 2007 be included in the 
record.* I have provided the Subcommittee with both hard copies and an 
electronic version of those documents.
---------------------------------------------------------------------------
    *The items have been retained in subcommittee files.
---------------------------------------------------------------------------
    Thank you again for the invitation to testify before this 
Subcommittee today. If you or any of the Members have questions I will 
be happy to answer them.

    Senator Cantwell. Thank you, Mr. Chedester, for your 
testimony. We appreciate you being part of this panel today.
    Mr. Robbins.

STATEMENT OF KENNETH M. ROBBINS, GENERAL COUNSEL, REPRESENTING 
             MERCED IRRIGATION DISTRICT, MERCED, CA

    Mr. Robbins. Good morning, Madam Chair, Senator Corker, we 
appreciate the opportunity to talk to you this morning.
    My name is Kenneth Robbins, I am the general counsel to the 
Merced Irrigation District. I also represent a group of 
agencies known as the San Joaquin Tributary Association--these 
are agencies that hold water rights and facilities on the 
Merced River, the Tulare River, the Stanislaus River North of 
the area affected.
    Much has been said about the San Joaquin River having been 
interrupted for 5 or 6 decades, however, not all of the San 
Joaquin River has been dried up. It actually begins again at 
the confluence of the Merced, where our projects provide a 
water that begins the river again.
    Our projects involve dams that are on those facilities that 
provide both agricultural and urban water, recreation, 
hydropower, flood control--all of the usual things that local 
public agencies do for their citizens in these kinds of 
projects.
    Our concern with the settlement was, initially--I mean, the 
San Joaquin River system is a very complex system--when you 
wiggle one part of it, obviously it's going to affect the other 
part.
    Our rivers sustain a fall-run Chinook salmon, which has a 
different life cycle than the spring-run, which is about to be 
reintroduced into the system. Our concern was the interplay of 
these two species, and the different needs for habitat they 
had, that they both be accommodated.
    Through the negotiation process, we believe that we have 
achieved that balance, and are firmly in support of S. 27, and 
appreciate the opportunity to express that support.
    We have been able to place a couple of provisions into the 
bill as it currently stands, that will protect all of the 
agencies--not just ours--but all of the agencies from the 
potential adverse impacts that an endangered species 
designation might have from the reintroduction of a threatened 
species, spring-run species, onto the system. It's being 
reintroduced as an experimental population, which is exactly 
what it is.
    We're also to be protected under the legislation for the 
duration of the settlement, or until 2025, I believe it is, 
when the settlement itself may be re-looked at in terms of 
water supply. So that all of the other tributaries to the river 
will essentially achieve the same protections. Our concern has 
also been how the process will actually be implemented, for 
instance, the timing of water arriving at the confluence of the 
Merced is an issue because of temperature differentials, needs 
at different times of the year for different species.
    We have successfully negotiated a Memorandum of 
Understanding, as Mr. Chedester's indicated, with the Bureau, 
which will allow us to input to the process that's been set up 
by the settlement for being able to adapt the process of 
restoring the river, and when flows will be achieved, et 
cetera, so that all of the species on the river--not just the 
spring-run--will be accommodated, and that's possible to do by 
simple adaptations that occur relative to timing of flows, the 
implementation of physical fixes to the River, and protections 
that are necessary for reintroducing the species.
    Finally, I think it's very important to understand that the 
third-parties are very much sympathetic to the settling parties 
in this issue. I mean, it has long been a concern of ours--
particularly in Merced--that we were the new head waters, 
essentially, of the San Joaquin River. And that imposed burdens 
upon the tributaries that were out of proportion to their size.
    The reintroduction and the reopening of the San Joaquin 
River will spread the burdens that are associated with water 
operations on the San Joaquin amongst all of the parties, and 
if the mitigation projects that are suggested by Friant are 
able to be implemented, most of the parties will be reasonably 
whole--both from a water-supply standpoint, and from a 
regulatory operations standpoint.
    So, once again, on behalf of the third-parties, the 
tributary agencies on the other rivers that tributary to the 
San Joaquin, we support the bill, and the balance in the bill, 
and are available for questions.
    [The prepared statement of Mr. Robbins follows:]
Prepared Statement of Kenneth M. Robbins, General Counsel, Representing 
                 Merced Irrigation District, Merced, CA
    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. Sec. 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. Sec. 1539(j)(1); 50 C.F.R. 
Sec. 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. Sec. 1539(j)(2)(C); 50 C.F.R. Sec. 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. Sec. 1539(j)(2)(C); 
50 C.F.R. Sec. 17.81(0. 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. Sec. 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.

    Senator Cantwell. Thank you, Mr. Robbins.
    Mr. Ishida, thank you for being here.

  STATEMENT OF ALLEN ISHIDA, CHAIRMAN, TULARE COUNTY BOARD OF 
                    SUPERVISORS, VISALIA, CA

    Mr. Ishida. Madam Chair, Senator Corker. My name is Allen 
Ishida, I am a third-generation Tulare County citrus farmer, 
Friant water user, and the chairman of the Tulare County board 
of supervisors.
    I appreciate this opportunity to appear before you to 
provide my perspective of the San Joaquin River settlement. I'm 
not representing a third-party, we were not invited to the 
party. So, we're just out in limbo.
    As an elected official, we look at this settlement 
differently. It is not just a settlement between farmers and 
environmentalists, it's a bigger issue to us than farmers and 
environmentalists.
    In the documents that I placed into the record earlier, 
there are resolutions supporting mitigation for loss of the 
surface water from Tulare and Kern County Boards of 
Supervisors, and all eight of our Tulare County incorporated 
cities. There are also resolutions requesting specific 
mitigation measures.
    There are letters supporting mitigation from the Community 
Water Center/the California Rural Legal Assistance Foundation, 
Self-Help Enterprises, and the Plain View Mutual Water Company.
    There are some maps, which are very vital to understanding 
the issues of our residents in Tulare County which pertain to 
nitrate contamination of our groundwater.
    Tulare County does not want to impede the implementation--
--
    Senator Cantwell. Mr. Ishida, do we have a copy of that 
map?
    Mr. Ishida. It was submitted.
    Senator Cantwell. It's been submitted to staff, we will try 
to--we have a larger map, but I think you're indicating 
something more--if staff could get a copy of the map from Mr. 
Ishida, that would be helpful. Thank you.
    Thank you, Mr. Ishida, sorry to interrupt your testimony.
    Mr. Ishida. The top couple are representations of the 
nitrate contamination issues we have in Tulare County.
    Tulare County does not want to impede the implementation of 
the settlement, but as I will outline in my testimony, we're 
very concerned about water supply, and the economic impacts 
within our county that will result from the implementation.
    The county has suggested a number of mechanisms, for 
inclusion in the legislation to mitigate those impacts, at 
best, our suggestions have been rejected by the settling 
parties.
    However reluctant we may be to initiate some action, we may 
have to explore the rights and remedies that can enforce to 
enjoin the settlement's implementation.
    Water, food, shelter are the three basic elements to life. 
We, as elected officials, have a responsibility to secure safe 
drinking water for our residents.
    Tulare County is in one of the fastest-growing regions in 
California. Our population will increase from 400,000 to 
600,000 people within the next 20 years. Over 53 percent of our 
population is Latino, over one-third of our population, 
according to the 2000 Census, is under the age of 19. It is 
currently estimated that our population right now is about, 
over 60 percent of our population is under the age 27. So, we 
are a very young county, and we will grow substantially just 
from the residents that we currently have.
    The future of Tulare County will depend on the quality and 
quantity of water available to our residents. We have 288 
public water systems in our unincorporated areas, and 42 
percent of the systems currently have nitrate problems. And, 
please refer to the map.
    Most of these water systems are within 3 miles of the 
current Friant Canal, and approximately 70 percent of our 
Latino population lives within this zone.
    The result of the proposed water released from the 
settlement will have a significant negative impact on our 
communities. The resulting overdraft will further decrease our 
water quality.
    In closing, I must emphasize that any changes to surface 
water delivery from the Friant Dam, absent mitigation, will 
undermine the very foundations of our economic success and 
prosperity.
    Thank you.
    [The prepared statement of Mr. Ishida follows:]
 Prepared Statement of Allen Ishida, Chairman, Tulare County Board of 
                        Supervisors, Visalia, CA
    My name is Allen Ishida, a third generation citrus grower in the 
Lindsay--Strathmore area and the Chairman of the Tulare County Board of 
Supervisors. I have spent over 20 years in the commercial real estate 
business selling farm and subdivision properties in California before 
returning to our family farm. I appreciate the opportunity to appear 
before you to provide my perspective of the San Joaquin River 
Settlement.
    Let me begin by saying that this settlement threatens to turn back 
the clock on an economic and environmental decision that was 
deliberately made by your predecessors to address regional water 
reliability. Therefore, the legislation being debated today represents 
a significant departure from the seventy years of public policy that 
created the most productive agricultural region in the world. Let me 
also say that I do not oppose the efforts of the settling parties to 
resolve the San Joaquin River dispute. I believe the restoration of the 
river is a noble goal.
    The original lands my family began farming were once dry land 
barley fields. My father, uncles and grandfather developed this land 
into citrus because of the availability of the new surface water from 
the Friant Dam and the micro climate that is ideal for citrus. The 
citrus industry in Tulare County is now a 500 million dollar business. 
Our original properties are still solely reliant on the surface water 
provided by Friant because the underground water is not available in 
sufficient quantities. My family and I felt confident in the federal 
government's implied promise to continue supplying water. We therefore 
have invested our future in farming. During the 1970's and 80's, with 
my father and brother, we purchased additional lands that had available 
underground water. Whatever shortfall in water delivery from the San 
Joaquin River Settlement, we will hopefully be able to make up the 
difference by pumping from the underground aquifer.
    The previous statement is from my perspective as a farmer. My 
perspective as an elected official in one of the fastest growing 
regions in California and my experience in the commercial real estate 
profession is very different. 1 am very aware of the negative impact 
pumping water from the under ground aquifer will have on the future 
development and quality of life in my county and neighboring counties. 
This settlement has a far greater impact on more than 400,000 Tulare 
County residents who were not direct participants to this settlement. 
Tulare County's population is projected to increase to over 600,000 in 
the next 20 years. The future of our county will depend on the quality 
and quantity of water available to our residents.
    One of the main reasons for building the Friant Dam was to secure 
an additional water supply to address ground water depletion due to 
pumping water for agricultural and domestic uses, which resulted in the 
1920's and 1930's. The new surface water provided by Friant reduced the 
depletion of our underground water. However, this situation is not 
static, and the demand for water to meet the growing demands of urban, 
agricultural and environmental uses in the San Joaquin Valley now means 
that the Valley currently experiences a water supply deficit of 1.1 
million acre-feet in an average year, and 2.6 million acre feet in a 
drought year. This deficit will grow if the Settlement is adopted as 
proposed with out any mitigation plan for water supply losses. These 
numbers show that we need additional surface water, not less.
    In fact, I call your attention to three studies * from the 
Northwest Economic Associates, University of California, and Friant 
Water Users Authority that came to the conclusion that ground water 
levels would nearly double in depth and pumping costs would 
significantly increase as a result of the water releases required in 
the Settlement. According to the studies, there would be serious 
economic impacts to the region due to the loss of jobs and the 
reduction of agricultural production.
---------------------------------------------------------------------------
    * The studies and other attachments submitted by Allen Ishida have 
been retained in subcommittee files.
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    Providing water in the quantity and quality to our communities is 
one of the major challenges we are currently facing in Tulare County. 
We have significant water quality issues with saline and nitrate levels 
above California State water quality standards.
    For example, the City of Lindsay (population 11,000), which 
receives approximately 60% of its water from Friant, had to locate its 
supplement water well 3 miles outside of the city limits because of 
water quality. We currently are looking for new well sites for several 
of our unincorporated communities whose water quality does not meet 
state standards. The result of these proposed water releases from the 
Settlement will have a significant negative environmental impact on our 
communities. The potential increased overdraft of our underground water 
table will further decrease our water quality.
    In closing, I must emphasize that any changes to water deliveries 
from the Friant Dam, absent mitigation, will undermine the very 
foundation of economic success and prosperity in the Central Valley. A 
promise to mitigate the loss of surface water from the San Joaquin 
River Settlement is not adequate for my constituents. We are asking for 
concrete mitigation language in the implementation legislation.
    Thank you for this opportunity to express our concerns.

    Senator Cantwell. Thank you, gentlemen, for all of your 
testimony. And, as I said earlier, we're taking testimony from 
other people that aren't here, just submitted statements and 
exhibits, and we'll obviously leave the record open for 2 
weeks, too.
    But, Senator Corker, did you want to start with a round of 
questions?
    Senator Corker. Actually, I wanted to thank you for a great 
hearing, and thank our witnesses for their testimony. I'm going 
to need to step out, our staff will remain, and I'm certain, 
especially with the last witness, there will be a lot of 
questioning from you, and we look forward to the answers. But, 
thank all of you for being here, and thank you for working so 
hard on a very complex settlement.
    Thank you.
    Senator Cantwell. Thank you, Senator Corker.
    Mr. Candee, I think I'll start with you, if I could. Why do 
you think the Restoration Plan in the settlement will be 
successful in restoring a sustainable salmon run?
    Mr. Candee. Well, first of all, this is not the first time 
that the parties to the litigation tried to reach settlement. 
In the late 1990's there was an earlier attempt to reach 
settlement, we actually put the case on hold for 4 years, and 
with some support from the State of California and the Federal 
Government, the Friant Water Users and the environmental 
plaintiffs jointly commissioned a number of studies. One of the 
things we studied is how to accomplish a complete restoration 
effort, involving the fisheries and riparian restoration, et 
cetera. A lot of scientific work was done, and from that work 
we, I think, both sides came to the conclusion that spring-run 
salmon was actually a very good species to focus on as the 
primary opportunity for restoration.
    As Mr. Grindstaff indicated, there are a lot of aspects 
about the San Joaquin system that will support San Joaquin 
salmon restoration, and spring-run salmon restoration, and, in 
fact, I think a lot of the fishery agencies, and certainly a 
lot of the fish biologists in the academic community think that 
this may be one of the best chances to bring back this species.
    So, we're optimistic, we think that the flows that are 
called for in the settlement, the hydrographs are designed to 
increase our chances of success with the least amount of impact 
to the water supplies to the Friant farmers, and part of the 
reason that the flows are being delayed, they're not going to 
be implemented right away, is so that additional work can be 
done on fish passage improvements, and other channel 
improvements, to again, increase the likelihood of success.
    Senator Cantwell. So, you think all of those things, is 
that what you're saying?
    Mr. Candee. Exactly.
    Senator Cantwell. Restoration, fish passage, the flows.
    Mr. Candee. Right.
    Senator Cantwell. You think it is a combination of all of 
those.
    Mr. Candee. Yes. I mean, I think that fundamentally it's 
the water that's been missing. The salmon species is incredibly 
resilient, and as I mentioned in my testimony, even after 
Friant Dam was built and it started to go into operation, the 
spring-run salmon came back, and the State Department of Fish 
and Game was successful in keeping the spring-run salmon going, 
so the water is the most critical thing. These other things are 
additional measures that will help--not only with the 
restoration effort, but will, in particular, help reduce the 
necessary amount of water, and therefore the water supply 
impact.
    I think one reason why there was a settlement was that it 
was clear that it was in everybody's interest to try to work on 
those other measures, but the key thing is the flows, and the 
flows that are in the settlement have not only the flows that 
we think as a base are necessary, but there's additional 
flexibility for adding a buffer flow, when needed, and then 
there's additional flexibility to purchase additional water, 
when needed, from willing sellers.
    Senator Cantwell. What about section 10? I'd like to ask 
you about that, because the bill specifies a number of 
protections for third-parties in declaring that spring-run 
Chinook shall be reintroduced as an experimental population 
pursuant to the ESA--so, does that diminish the discretion of 
the Secretary of Commerce, what they would normally have in 
reintroducing a species as an experimental population? Do you 
think that impacts their discretion?
    Mr. Candee. The National Marine Fisheries Service was 
actually in the room when that section was revised, in Senator 
Feinstein's conference room, and the question that the Justice 
Department, the Commerce Department, the Interior Department 
were asked repeatedly, is: Can you live with this? This 
approach?
    One of the things that they told us in those negotiations 
was that there has not been a lot of experience at the National 
Marine Fisheries Service with reintroduction of listed species, 
but there has been more experience at the Fish and Wildlife 
Service, and they look to the Fish and Wildlife Service for 
guidance. And their own internal review indicated that the 
experience of the Fish and Wildlife Service indicated that they 
would probably do exactly what's mapped out in section 10, 
anyway. That that would be the course of action they would be 
likely to act on.
    So, we in the environmental community, and I think the 
Government people as well, and Senator Boxer's staff and 
Senator Feinstein's staff were all trying very hard not to 
constrain the implementation of the Endangered Species Act, and 
elsewhere throughout the settlement bill, it's clear that this 
is supposed to be implemented consistent with Federal law.
    Senator Cantwell. Okay, Mr. Dooley, obviously representing 
the Friant Water Users--there's an article in the Sacramento 
Bee that referenced a study that said that the settlement 
requirement put about 3,000 people out of work, as a result of 
agriculture production falling, 159 million annually. Do you 
believe that study? And if you do, why did you agree to the 
settlement?
    Mr. Dooley. Well, let me restate what I said earlier. We 
agreed to the settlement because the alternative of letting the 
judge determine the result was likely to be far worse. And, so, 
quite candidly, it was a business decision that the way to 
minimize the impacts of restoration of flows to the San Joaquin 
River was through a negotiated settlement as opposed to the 
meat cleaver approach that the judge was likely to impose upon 
us.
    And, the judge was likely to retain jurisdiction and if 
fish didn't come back in year one, he had the flexibility to 
increase the flows in the following year, so we would not know 
from year to year how much water would be required.
    That study was prepared by our expert, and it assumed that 
if you restored the flows contemplated by this settlement, or 
that were proposed by the Plaintiff's expert, and made no other 
changes in the way the project was operated, assumed that it 
was operated as it has been historically operated, that's what 
the impacts were likely to be.
    Of course, we don't intend to operate as we historically 
have, and included in the settlement are provisions that 
provide for recapture of some of the water that's released for 
restoration, and for implementation of other water management 
measures that would substantially reduce the impacts over time.
    We fully expect that many of those measures will be in 
place before the full restoration flows begin in 2014. So, in 
my humble opinion, and I should emphasize that I'm a fifth 
generation Tulare County farmer, and certainly our family's 
operation is in the area impacted by the delivery of Friant 
supply, I have a keen personal interest in making sure that 
there aren't longstanding, significant, adverse effects of this 
settlement.
    But I fully believe that before it's all said and done, 
there will be no land taken out of production as a result of 
the implementation of this settlement, that the--that my 
clients, the water managers within the Friant Water Authority, 
will be as creative in the future as they have been in the 
past, and implement programs that will effectively mitigate the 
impacts of the restoration of flows on the river.
    Senator Cantwell. What about the concerns raised by Mr. 
Ishida?
    Mr. Dooley. Well, I would say this--all of my clients share 
the basic concern about not having longstanding water supply 
losses in the area. The question is: How do you address those 
losses? We have shared some concerns with Mr. Ishida about his 
proposed amendment, because it presupposes a particular fix on 
recirculation, which we're not prepared to say, at this stage, 
to say is the, necessarily, the right fix. We certainly think 
it's one of the things that should be evaluated by the 
Secretary of the Interior in preparation of the plan that's 
required by the settlement and the legislation.
    There are agricultural concerns about groundwater quality, 
certainly, that are existing today, and quite candidly, in my 
opinion, are unrelated to whether there's a settlement or not.
    Those water quality issues need to be addressed, and 
regardless of whether there's a settlement of this longstanding 
litigation, I think one thing can be said for sure, that the 
Friant Water Users Authority intend to push very hard to make 
sure the water management goal of the settlement is fully 
implemented. And we believe that if it is, that there will be 
substantial, if not complete, reduction or mitigation of the 
water supply impacts of restoration of flows.
    But, the bottom line is that we were able to negotiate a 
settlement that results in about a 15 percent reduction in our 
water supply and we were fearful of a 30 or 35 percent 
reduction in our water supply, if the judge was left to make 
the determination. So, we think in terms of the long-term 
future, certainty of water supply, this settlement goes a long 
ways to providing that certainty and gives us a lot of tools to 
make sure we can develop additional water management programs 
to offset the losses.
    Senator Cantwell. Thank you for that answer. I think it's 
safe to say there's a lot riding on the water management plan 
in this settlement agreement.
    Mr. Dooley. Of course there is.
    Senator Cantwell. Mr. Ishida, what specific language are 
you looking for?
    Mr. Ishida. I believe we're looking for concrete mitigation 
solutions in the litigation. I believe as Mr. Dooley does, I 
believe we can solve the loss of the surface water through 
mitigation efforts, it depends on how much money the Federal 
Government and the State government and the county government 
has to mitigate, to spend for the mitigation.
    I would like some concrete assurance in the legislation 
stating that there will be mitigation for this water loss. 
We've had, experienced in the past where the Bureau has 
promised mitigation efforts, and they still haven't been built. 
So, I'm just trying to protect our residents.
    Senator Cantwell. Thank you. If I could, Mr. Robbins, you 
mentioned that the irrigation districts that you represent are 
trying to address the related issues to the fall Chinook run. 
Are these decisions that, or actions that you're taking based 
on the biological opinions?
    Mr. Robbins. No, the biological opinion doesn't apply to 
the fall-run, it's not either threatened or endangered, it is a 
species of concerned.
    But, of course, if spring-run comes back into the system, 
and is reintroduced, that changes the mix entirely. The needs, 
the timing of water, the temperature of water, a change--there 
is a different between spring-run and fall-run. So, our issue 
was to make sure that whatever was implemented would be 
adaptable, so that it could be managed, that both species could 
survive and flourish, and that one would cancel the other out.
    Now, we fully expect to see a spring-run back on our 
tributaries, not just on the San Joaquin--I mean, that would be 
a natural function of the reintroduction of the species, and 
that's why eventually, we would expect to deal with them on the 
tributaries as well. And that's why you see in the legislation 
the experiment, the 10(j) language, followed by the Federal 
Power Act language, to ensure that the protections afforded in 
the settlement go all the way through the experiment period, or 
at least through 2025 are present. But, we will have to address 
this at some point in the future.
    Senator Cantwell. Okay, Mr. Grindstaff, your testimony 
indicates that California is prepared to spend, or will spend, 
I should say, $18.3 million for the 2007-2008 budget in support 
of the settlement.
    Mr. Grindstaff. That's correct.
    Senator Cantwell. What is the extent of the channel 
restoration, levy reinforcement, water management and 
mitigation efforts?
    Mr. Grindstaff. Well, the first thing we really need to do 
is to develop the plan more substantively. So, this $18 million 
goes a long ways towards getting the plan to the place where we 
can implement it. The State of California probably has upwards 
of a couple hundred million dollars that could be dedicated 
towards the purposes of this restoration.
    First, there's $100 million specifically dedicated in Prop 
84, there's additional money for water management activities 
for the San Joaquin Basin, it's a part of Prop 84, we have a 
number of pots of money that will be specifically available.
    We have, in what's called Proposition 1E, money available 
for dealing with levies and plug management. So, our 
expectation is that there are a lot of resources available, 
they will need to be matched with Federal funding, and the 
State legislature, as you can imagine, they are asking us, is 
the Federal Government willing to step up and be apart of this, 
so that when we dedicate our State resources, we can be assured 
that the Federal Government will be a part of this effort? But, 
we have money available that's allocated to the San Joaquin, 
and we have the potential for significant additional resources, 
provided, of course, that we really have the Federal Government 
step up.
    So, moving ahead on this bill is really important from that 
perspective. I personally have been asked the question by 
members of our State legislature: Are you really going to get 
support on the Federal side? They haven't felt that the Federal 
Government has always come through and I think we have 
agreement this year that $18 million is going to go through, 
and we're going to fund this, but they really would like to see 
something move, so that there is that commitment.
    Senator Cantwell. Having been a former State legislator, I 
can understand that question, but now being in this body----
    Mr. Grindstaff. Now you're on the other side.
    [Laughter.]
    Senator Cantwell. I want to know that they're going to put 
up the resources.
    Mr. Grindstaff. They are, they are going to, and they have, 
in fact, for this coming year, committed to the $18 million.
    Senator Cantwell. Thank you.
    Mr. Chedester, can you tell me about Reach 4b and your 
concerns and what we need to do there? And, can we achieve 
that? Can we achieve the flows and capacity that we need to?
    Mr. Chedester. Coming from a technical background, you just 
need enough money, you can build anything. So, yes, is it 
possible. But, I think to your question, is that Reach 4b today 
cannot handle the flows, the restoration flow. There's no 
doubt. The flows that are required in the settlement are about 
4,500 cubic feet for second, the flow of that channel today is 
probably 100 or 200. So, substantial changes in the system will 
be required, or at least studied.
    The settlement in the legislation contemplates that Reach 
4b might be the path that gets used for the fish passage, or 
there's a corresponding levy system, it's called a flood-bypass 
system that exists that might also be used.
    Legislation says we need to do a study in that area to see 
what, if it's feasible to use 4b, because of those flow issues 
that you would take so much resources, money, to mitigate, 
design and build a flood, deconstruct a river there, and maybe 
it's better to use another pathway. That's one of the first 
things that in the legislation that we have to take a look at. 
That study then comes back to the Secretary and they take a 
look at that with all the other costs, and make sure that they 
have enough resources to go forward, and then decide which way 
to go.
    So, the answer to the question today, can we handle it? No. 
If we try to put those kind of flows down there today, it would 
flood out tens of thousands of acres.
    Senator Cantwell. So, what do we do if we find out that we 
can't enhance that section of the river to the capacity we'd 
like?
    Mr. Chedester. I believe there is a flood bypass system 
that is in existence, and it's called the East Side Bypass, and 
it could be used to push the flows through, and actually 
today--if you did nothing today, flows go down that river, not 
in Reach 4b, but right where that bypass begins, again, it's 
kind of a complicated system, but flows of that magnitude go 
through that part of the river, the bypass, today. So, you 
could handle those flows, today, through that system, the 
problem is, it's not designed for fish habitat, it is designed 
as a flood bypass, which means it has no vegetation in it.
    Senator Cantwell. Mr. Grindstaff, is there a dollar amount 
that you've looked at for this part of the project?
    Mr. Grindstaff. There's not a dollar amount that I am aware 
of, it is something that we need to look at closely, and figure 
out how we would deal with the issue.
    Senator Cantwell. But would you say it's a significant 
portion of the settlement? Improvements that need to be made?
    Mr. Grindstaff. It may be, I'm not an expert in this area.
    Senator Cantwell. Mr. Dooley.
    Mr. Dooley. Madam Chair, if I could respond, I think all of 
the settling parties, and certainly the Department of Water 
Resources, have taken a look at sort of gross cost numbers, and 
there's a significant range that was developed which is 
dependent, in part, on what standards you have to build levies 
to.
    But, everybody's estimate is that, the Reach 4b issue is a 
significant part of the cost, whether it's the high estimate, 
or the low estimate, it's--proportionally, it's a significant 
part of the cost for a lot of the reasons that Mr. Chedester 
mentioned. And, I think one of the reasons the legislation has 
the provisions in it, is none of us want to have that Reach 
consume all of the available funds for implementing the 
settlement. If it isn't feasible to restore the historic 
channel, then I think we all believe it would be significantly 
less expensive to do the work necessary in the bypass channel 
to manage the flows in that section of the river.
    But, the point is, we're not in a position to make that 
determination until additional design and engineering work is 
done to determine whether it is feasible or not.
    Senator Cantwell. Well, I want to thank all of you for your 
testimony today, I'm sure that my colleagues will appreciate 
you being here today, we will leave the record open, as I said, 
for 2 weeks for additional questions from members, and if you 
could respond expeditiously to that, I would appreciate it.
    I thank you for your work in working together to achieve 
this settlement. I think that you are on the doorstep, though, 
of a tremendous amount of continuing work. I'm not sure what 
this portends for the rest of us who deal with these challenges 
throughout the Pacific Northwest, hopefully you will pioneer 
some good, successful results that we can learn from, and 
certainly we can learn from the fact that 18 years bringing us 
to where we are today, there probably are some paths to shorten 
that for other communities.
    So, thank you for sharing your experiences with us today, 
the Committee is adjourned.
    [Whereupon, at 11:55 a.m., the hearing was adjourned.]
                               APPENDIXES

                              ----------                              

                               Appendix I

                   Responses to Additional Questions

                              ----------                              

    Responses of Daniel M. Dooley to Questions From Senator Bingaman
    Question 1a. Your testimony indicates that the average annual 
impacts to the Friant Water Users from the settlement will be a 
shortage of 170,000 acre-feet.
    Do you think that the Water Management Goal in the settlement is 
certain enough to mitigate a substantial portion of this shortage?
    Answer. The Water Management Goal contained in paragraph 16 of the 
Settlement requires the Secretary of the Interior to ``develop and 
implement'' a plan for recirculation, recapture, reuse, exchange or 
transfer of the Interim Flows and Restoration Flows required by the 
Settlement for the purpose of reducing or avoiding impacts to water 
deliveries to all of the Friant Division long-term contractors. 
Paragraph 16 also requires the implementation of a Recovered Water 
Account to make water available to Friant Division long-term 
contractors at reduced prices during wet hydrologic conditions.
    At the public hearing on May 3, 2007, I provided the Subcommittee 
with a report entitled, ``San Joaquin River Restoration Program, Water 
Management Goal, Potential Programs and Projects'' that was prepared by 
members of the Friant Water Users Authority. Implementation of programs 
and projects of the nature outlined in the Friant report can 
substantially mitigate the impacts of providing Interim Flows and 
Restoration Flows required by the Settlement.
    It is the Friant position that the Water Management Goal is equal 
and parallel to the Restoration Goal of the Settlement and that it will 
require significant attention and effort as the Settlement is 
implemented. Unfortunately, not all of the potential measures to 
implement the Water Management Goal have been identified, which is why 
the Secretary is directed to develop the plan. The plan must provide 
the detail to provide certainty that the Water Management Goal is fully 
implemented.
    Question 1b. Will the Water Management Plan address the concerns 
being raised by Mr. Ishida in his testimony (Tulare County)?
    Answer. If the Water Management Goal is fully implemented, most of 
the concerns expressed by Mr. Ishida at the hearing will be addressed. 
As I noted in response to a question during the hearing, some of the 
groundwater quality issues raised by Mr. Ishida are unrelated to 
whether the Settlement is implemented or not.
    Question 1c. Given the limited amount of storage in the basin, how 
will surplus water be made available to your water users pursuant to 
the ``Recovered Water Account'' called for in the settlement?
    Answer. There are two critical components to effective utilization 
of the Recovered Water Account. First, existing capacity limitation in 
the Friant-Kern and Madera Canals must be addressed to create or 
restore conveyance capacity to transport significant volumes of water 
during wet hydrologic conditions. Second, existing groundwater recharge 
and banking capacity must be expanded so that Friant long-term 
contractors have sufficient storage capacity to take advantage of such 
water. Many of the programs and projects identified in the report 
prepared by Friant and referenced above are designed to do precisely 
that.
    While additional surface storage is not part of the Settlement, the 
members of the Friant Water Users believe additional storage is a 
critical component of long-term water security for the San Joaquin 
Valley.
    Question 2. 3406(c)(1) of the CVPIA, established the Friant 
surcharge and states that the contractors are required to pay the 
surcharge ``until such time as flows of sufficient quantity, quality, 
and timing are provided . . . to meet the anadromous fishery needs . . 
.''.
    Do the restoration flows called for in the settlement constitute 
``flows of sufficient quantity, quality, and timing''. If so, absent 
the extension of payments in S. 27, would the Friant surcharge continue 
to be paid until 2014 when the restoration flows are implemented?
    Answer. The flows called for in the Settlement are specifically 
designed to be ``flows of sufficient quantity, quality, and timing'' to 
restore a salmon fishery to the San Joaquin River. They are based upon 
hydrographs (included in the Settlement as ``Exhibit B'') prepared by 
plaintiffs' expert fishery biologists. The Settlement also provides for 
``buffer flows'' and timing flexibility to assure that the flows can be 
optimized for fishery purposes.
    If ``flows of sufficient quantity, quality, and timing'' were 
released pursuant to CVPIA section 3406(c)(1), the Friant surcharge 
would be eliminated. As a part of negotiating the Settlement, the 
Friant contractors agreed to continue making the surcharge payment even 
though an argument could be made that the surcharge payments should be 
eliminated. The Settlement requires Friant to continue the payments. S. 
27 requires the Secretary to continue to collect the surcharge and 
dedicate the proceeds to implementation of the Settlement.
     Responses of Daniel M. Dooley to Questions From Senator Smith
    Question 1. S. 27 includes a provision directing NOAA Fisheries to 
designate the reintroduced salmon on the San Joaquin River as an 
nonessential, experimental population under section 10(j) of the 
Endangered Species Act. I understand this designation would exempt that 
population from the prohibition on ``take'' in section 9 of the ESA.
    Including this provision in S. 27 implies that section 10(j) can be 
utilized to designate a population as nonessential, experimental, even 
when that population will later intermingle with non-designated 
populations in its lifecycle. And that it can be implemented before the 
reintroduction of a threatened species.
    Is this your understanding of the provision in S. 27?
    Answer. Section 10 of S. 27 was written in consultation with NOAA 
Fisheries and is intended to memorialize how the agency indicated it 
would undertake the reintroduction. It provides for the reintroduction 
of California Central Valley Spring Run Chinook salmon provided the 
Secretary of Commerce finds that a permit to do so may be issued 
pursuant to section 10(a)(1)(A) of the ESA. Assuming the Secretary 
finds that such a permit can be issued, the Secretary shall issue a 
final rule pursuant to section 4(d) of the ESA governing the incidental 
take of such reintroduced California Central Valley Spring Run Chinook 
salmon. Section 10 of S. 27 provides that such rule shall not impose 
more than de minimis water supply impacts on third parties as that term 
is defined.
    Neither I nor the Friant Water Users are in a position to judge 
whether the use of Section 10(j) as provided in the ESA in this 
instance creates any implications as to other applications.
    Question 2. If Congress were to enact this bill, don't you agree 
that it should promote the use of the 10(j) provision as an essential 
tool to accelerate the reintroduction and recovery of threatened 
anadromous fish like salmon and steelhead?
    Answer. Section 10(f) of S. 27 specifically provides that Section 
10 is not intended to modify the ESA or set a precedent with respect to 
any other application of the ESA. While noting Section 10(f) of the 
legislation, it is important to note that Section 10(j) of the ESA 
provides a statutory mechanism that is intended to be used in some 
circumstances. Its application in other cases should be determined by 
the facts of those cases.
                                 ______
                                 
    Responses of Allen R. Ishida to Questions From the Subcommittee
    Question 1. Why doesn't the Water Management goal of the settlement 
address your concerns? Answer
    Answer. In every article I read addressing the San Joaquin River 
Settlement and in the testimony that I have witnessed, no one has 
addressed the cost of mitigating the loss of surface water for the 
residents in the Friant Service Area. It is also clear to me that no 
one is sure that $500 million in federal funds will accomplish the 
stream restoration and reintroduction of salmon exclusive of the costs 
of mitigation projects. The cost to mitigate the surface water loss 
could potentially be greater than the river and salmon restoration.
    Question 2. Have mitigation options been sufficiently developed in 
your area to mandate their inclusion in this legislation?
    Answer. I believe that there are options sufficiently developed for 
inclusion in this legislation. I have been assured by the Friant Water 
Authority that they have many mitigation projects that could be 
implemented in fact that list was entered into the subcommittee record 
on May 3, 2007. To this date I have not received a copy of the Friant 
Water Authority potential mitigation projects nor have they offered to 
share the information with me.
    In item 2 you made the statement as follows: Some of the water 
quality concerns you raise in your testimony would seem to be ongoing 
problems that are not directly related to the settlement. You are 
correct that we have been addressing ongoing problems with water 
quality in Eastern Tulare County. This settlement directly impacts 
water quality issues for almost all of our 400,000 plus residents in 
Tulare County. For example I am a citrus grower in a county that has 
approximately 100,000 acres of mature citrus tree. The citrus industry 
is highly dependent on Friant Water. Please refer to the crop maps that 
I entered into the record on May 3, 2007. A 15% reduction in surface 
water, just in the citrus industry, will result in pumping 
approximately 42,000 acre feet from the underground water table every 
year. If we experience prolonged drought conditions which we have in 
the recent past, farmers will pump even greater amounts of groundwater 
because the federal government will not be able to deliver contracted 
amounts of Class 1 Water. Pumping underground water will accelerate and 
diminish the water quality for our residents that depend on 
groundwater. I assure you as a farmer, I will supplement my surface 
water loss by pumping from the underground water table to keep my farm 
economically viable. If in 2025 the salmon run is not re-established 
and more surface water is taken, this settlement will put thousands of 
farmers out of business and our rural communities will fail.
    Question 3. What current actions are being undertaken by Tulare 
County, local water providers, and the State of California to address 
those water quality concerns?
    Answer. The Tulare County Board of Supervisors re-instated our 
county water commission to address issues such as groundwater recharge 
and water quality. The water commission will serve in an advisory 
commission for the board of supervisors. They will be charged to find 
solutions for our immediate and long term water needs. This commission 
will have a great influence on the future growth of our county. This 
commission will consist of local water experts and concerned residents. 
Tulare County Board of Supervisors is on record to support a new water 
storage facility on the San Joaquin River.
    The Governor of California is advocating a new surface water 
storage facility on the San Joaquin River. A new surface storage 
facility will greatly enhance mitigation efforts resulting from the San 
Joaquin River Settlement, but a new water storage alone will not solve 
all of our water quality and quantity problems. That is why we have re-
activated our county water commission. The voters of California voted 
in 2006 to bond money for water studies and flood control.
                                 ______
                                 
  Responses of P. Joseph Grindstaff to Questions From Senator Bingaman
    Question 1. From the testimony, it's clear that a number of water 
quality issues currently exist in Tulare County notwithstanding this 
settlement. What is the State currently doing to help address the water 
quality issues in Tulare County? Will Tulare County be a focus in the 
Water Management Plan called for in the settlement?
    Answer. The State has been and continues to be very active in 
funding water quality improvement projects in Tulare County. In recent 
years, the State has provided over $1.4 million to the Upper Kings 
River Water Forum, in which the counties of Fresno, Kings and Tulare, 
water agencies, and cities are partnering to develop an Integrated 
Regional Water Management Plan (IRWMP). The purpose of the IRWMP is to 
define projects and programs to manage and develop both surface and 
groundwater supplies for long-term sustainability. Improved water 
quality is a major focus of the plan.
    Additionally, another $1.4 million in Proposition 13 and Local 
Groundwater Assistance grants has been awarded to agencies within 
Tulare County to fund groundwater data collection, recharge and well 
monitoring.
    Tulare County is hydrologically separate from the San Joaquin River 
Basin, therefore, water quality issues in Tulare County will not be a 
focus in the Water Management Plan. However, a number of possible water 
management actions involve Tulare County, such as the Trans-Valley 
Canal and other interties, as well as water transfers and groundwater 
banking both in and adjacent to Tulare County. None of the actions 
proposed in the Water Management Plan will negatively impact water 
quality in Tulare County. Conversely, if proposed actions can provide 
water quality benefits to Tulare County, those actions would be given a 
higher priority for implementation than others.
    Question 2. What will be the State's priority for expending funds 
given the extent of channel restoration; levee reinforcement; & water 
management and mitigation efforts needed as part of the settlement?
    Answer. The State intends to spend funds on restoration actions 
identified and prioritized in the Settlement Agreement. Each of these 
actions is being evaluated from the State's perspective to make sure 
that State priorities are taken into consideration. The criteria being 
used to evaluate each action include answers to the following 
questions:

   How well will implementation of this action help the State 
        meet our flood protection goals?
   How closely does this action follow the 2005 State Water 
        Plan?
   How will implementation of this action benefit the people of 
        California?
   How will implementation of this action improve water quality 
        in the Delta and facilitate continued operations of the pumps?
   How will implementation of this action protect, restore, and 
        enhance the natural and human environments?

    Additional considerations for prioritizing implementation of 
actions include the leveraging of funds and the timing of funding 
availability. State funds are currently being leveraged through 
coordination with other programs and agencies. One illustration of such 
coordination is that the USBR has funds to provide aerial mapping and 
DWR has funds to establish ground control. Through this joint effort, 
one foot topographic maps are currently being finalized for Reach 1 of 
the San Joaquin River, below Friant Dam. This map will be used by both 
the Restoration Program and the Division of Flood Management. The 
timeline for when funds are available and also for when they might 
expire is also taken into consideration when prioritizing actions.
    Question 3. How does San Joaquin Restoration fit into the overall 
``Delta Vision'' process, if at all?
    Answer. Any actions on the San Joaquin River that improve the 
quality of water entering the Delta are consistent with the objectives 
of the Delta Vision process. The foremost of these actions is the 
addition of flows for restoration purposes. The volume and the quality 
of water that will reach the Delta via restoration flows have the 
potential to improve water quality in the Delta itself. Additionally, 
the restoration of tributary habitat for anadramous fish proposed by 
the Settlement will contribute to an overall healthier Delta ecosystem.
                                 ______
                                 
                         Mason, Robbins, Browning & Godwin,
                                          Merced, CA, May 21, 2007.
Hon. Jeff Bingaman,
U.S. Senate Committee on Energy & Natural Resources, Dirksen Office 
        Building, Washington, DC.
Re: Question arising from the Senate hearing on S. 27 dated May 3, 2007

    Dear Senator Bingaman: Thank you for your kind letter of May 7, 
2007. The San Joaquin Tributary Agencies generally, and the Merced 
Irrigation District specifically, appreciates the opportunity to appear 
before the Water and Power Subcommittee of the Energy and Natural 
Resources Committee.
    As a result of that hearing you posed the following question:

          How might your operations be further affected by the 
        reintroduction of Spring Run Chinook were it not for the 
        protections provided by Section 10 of the bill?

    Merced Irrigation District operates its Exchequer Project on the 
Merced River for water supply, power generation, flood control and 
recreation. In addition, the River is managed for the beneficial use of 
fisheries in the Merced River which include Fall Run Chinook Salmon 
amongst others.
    Fall Run Salmon have a different life history than Spring Run. 
Fall. Run Chinook leave the ocean and migrate into the fresh water 
spawning grounds in the fall primarily from late October until late 
December. They are therefore in the river system when natural side 
flows from small tributaries as well as winter flood control releases 
are present. It is not normally necessary to make releases from storage 
to provide suitable habitat for Fall Run Salmon. except in the driest 
years. Also, the temperature of the water is usually satisfactory for 
spawning and rearing purposes. The salmon generally out-migrate from 
the system to the ocean the following spring having spent only the 
winter in fresh water. The spring flows when combined with regulated 
flows are generally sufficient for the species well being. There are 
those, of course; who will disagree on flow requirements but those 
disagreements are generally within limited range.
    Spring Run Chinook move into the system as adults in the spring 
during high spring flows. Historically they would move high into the 
mountains to spawn and not remain in low foothill and valley floor 
areas as their life cycle includes summering over in fresh water and 
then spawning in late summer or early fall. Spring Run can then either 
migrate out in the spring or spend another entire year in the system 
migrating out the following spring. Although this behavior can happen 
with the Fall Run, it is much more prevalent with Spring Run. The net 
effect is that as Spring Run Salmon approach dams that block access to 
the higher elevations they begin to spawn in the lower elevations. 
Water temperatures during the summer may be to high for their survival 
at low elevations though most dams provide cold enough water for 
survival, nevertheless, successful spawning is very problematic without 
additional cold water flows in the summer for fishery protection.
    As a result, a threatened species such as Spring Run could have the 
eventual requirement of significantly greater volumes of water that 
would otherwise be placed to other beneficial uses. In addition 
management activities on the river would be subjected to added 
oversight because of the presence of the species. With both species 
Salmon will be present all year not just winter and spring. Water could 
be required at different times of the year than is currently present 
shifting the time for generation of electricity and therefore 
potentially impacting the value of the power. Water levels in the 
reservoir could be impacted reducing recreational opportunities. 
Finally, Spring Run and Fall Run will be spawning on the same grounds 
below large dams on the San Joaquin and its tributaries.
    With respect, to relicensing the project before the Federal Energy 
Regulatory Commission (FERC), the presence of Spring Run Salmon would 
authorize the Department of Commerce through the National Marine 
Fishery Service to impose mandatory conditions for fishery protections 
on the District licenses regardless of its water supply or economic 
impacts. Since Merced Irrigation District relicensing will occur in 
2014 these impacts could be imposed long before other agencies on the 
San Joaquin would need to deal with Spring Run Salmon based upon the 
10(j) designation of the species.
    With the reintroduction of Spring Run under Section 10(j) of the 
Endangered Species Act and the FERC protections provided under the 
Federal Power Act included in Section 10 of the bill, Merced Irrigation 
District, and eventually all other FERC license holders on the San 
Joaquin River, wilt eventually have to deal with the issue of Spring 
Run Salmon but not until we know if the experiment is successful and 
then only in 2025 as all other agencies subjected to this regulatory 
activity as well.
    I hope this adequately answers your inquiry. I am of course 
available for further questions as they might arise.
            Very truly yours,
                                                Kenneth M. Robbins.
                                 ______
                                 
                         Natural Resources Defense Council,
                                   San Francisco, CA, May 22, 2007.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
Re: S. 27--San Joaquin River Restoration Settlement Act

    Dear Chairman Bingaman: Thank you for your letter of May 7, 2007 
requesting our answers to the Committee's additional questions to 
witnesses from the May 3, 2007 hearing of the Subcommittee on Water and 
Power regarding S. 27, the San Joaquin River Restoration Settlement 
Act. Attached please find the responses of the Natural Resources 
Defense Council (NRDC) to the additional questions submitted to us with 
your letter.
    In addition, we appreciate the Subcommittee's offer to all 
witnesses to supplement the record from the hearing and are attaching 
some new materials re S. 27 that were not available at the time of the 
hearing which we ask be included in the record of the hearing:*
---------------------------------------------------------------------------
    * The attachments can be found in appendix II.

   Letters from Association of California Water Agencies to 
        Sen. Feinstein and the House Subcommittee on Water & Power (May 
        3, 2007) supporting S. 27/H.R. 24
   Letters from National Water Resources Association to Sen. 
        Feinstein and the House Natural Resources Committee (May 16, 
        2007) supporting S. 27/H.R. 24
   Letters from Contra Costa Water District Board of Directors 
        to Sen. Feinstein and Rep. Radanovich (May 22, 2007) supporting 
        S. 27/H.R. 24
   Press Release by Congresswoman Grace Napolitano (May 17, 
        2007)
   ``Water: San Joaquin River restoration plan could fall 
        apart, witnesses warn,'' Environment and Energy Daily (May 4, 
        2007)

    Thank you for providing us this opportunity to provide additional 
information to the Committee about S. 27.
            Sincerely,
                                           Hamilton Candee,
                                Co-Director, Western Water Project.
                    Questions From Senator Bingaman
    Question 1. Hal Candee (NRDC)--The Administration's testimony 
indicates that feasibility-level designs have not been done on the 
actions needed to restore the salmon runs, particularly channel 
restoration work such as that required in Reach 4B.
    If additional funding is necessary to complete the actions called 
for in the settlement and such funding is not provided (i.e. actions 
cost more than direct spending available from the settlement bill & 
appropriations are not forthcoming), has the U.S. breached the 
settlement?
    What is the remedy in the event of a breach?
    Answer. The Settlement and the pending Legislation contemplate a 
combination of State and Federal funding sources, including the use of 
various payments by Friant Water Users to the Federal Government. Some 
of those funding sources are already available to the Department of the 
Interior through existing authorized appropriations and have been used 
by Interior to initiate Settlement implementation actions since the 
Settlement was approved by the Court on October 23, 2006. In 
anticipation of this fact, the United States stated explicitly in the 
Settlement:

          Prior to the enactment of the legislation . . . the Secretary 
        may exercise any existing authority to initiate the planning 
        and design of the improvements specified under Paragraph 11, 
        subject to the availability of appropriations. Paragraph 23 
        (emphasis added).

    The United States also agreed as follows:

          The Secretary shall promptly commence activities pursuant to 
        applicable law and provisions of this Settlement to implement 
        the provisions listed in Paragraph 11, provided that funds are 
        appropriated by Congress or available from non-federal sources 
        for that purpose. Paragraph 9 (emphasis added).
          In undertaking the implementation of these improvements, the 
        Secretary may enter into such appropriate agreements, memoranda 
        of understanding . . . cost-sharing agreements, or other 
        relationships . . . as may promote the timely and cost-
        effective completion of the improvements. Paragraph 10 
        (emphasis added).

    On the same day as the United States approved the Settlement and 
filed it with the Court, i.e. September 13, 2006, it also executed an 
MOU with the State of California (and the other Settling Parties), 
which provides inter alias:

          The State has expressed strong support for this Settlement 
        and has pledged cooperation and the financial resources of the 
        State to help it proceed. (Part A--Preface)
                            *      *      *
          DWR and DFG each intend to assist the Settling Parties in 
        identifying State funding sources which may be available to 
        implement the Restoration Goal and the Water Management Goal of 
        the Settlement . . . (Part C. 4c.)
                            *      *      *
          An initiative known as [Proposition 84] . . . [provides] that 
        $100,000,000 shall be available to the California Resources 
        Secretary for the purpose of implementing a court settlement to 
        restore flows . . . to the San Joaquin River, and specifies 
        that the funds shall be available for channel and structural 
        improvements and related research pursuant to the court 
        settlement. (Part C. 4d; emphasis added).

    Similarly, the Parties clarified in the Settlement that not all 
actions in the Settlement require additional action by Congress:

          The Parties acknowledge that certain actions to be undertaken 
        to implement this Settlement will require additional 
        authorization or appropriations by Congress, or both. Paragraph 
        8 (emphasis added).

    Finally, the United States also made other relevant commitments 
that were essential to the Parties reaching Settlement of the 
litigation, including but not limited to:

          The Secretary shall diligently pursue implementation of the 
        Restoration Goal and the Water Management Goal as set forth in 
        this Settlement. Paragraph 4
          The dedication of funds as provided in Paragraph 21(a) shall 
        not preclude the Secretary from attempting to seek to secure 
        the appropriations of additional funds by Congress for the 
        implementation of this Settlement. The Secretary anticipates 
        seeking such appropriations through the appropriate 
        administrative process. . . . Paragraph 21(c).

    In sum, although the issues of appropriations, conditions 
precedent, force majeure, dispute resolution, and remedies for breach 
of the agreement are extensively addressed in numerous sections, see 
for example Paragraphs 23, 24, 25, 26, 27, 33, 35 and 36, and are too 
extensive and voluminous to summarize here, they are to be read in the 
context of the overarching provisions of the Settlement, and the 
separate MOU with the State, concerning the mixture of new, existing 
and non-federal funding sources to understand the vision of a joint 
federal-state restoration effort.
    Question 2. Hal Candee NRDC--The Subcommittee received testimony 
for the record from Kole Upton, Chairman of the Friant Water Users 
Authority. His statement indicated that the Friant Water Users wanted 
to include new surface water storage as part of the settlement but that 
the environmental coalition rejected this option.
    Does NRDC oppose new storage as a potential measure to mitigate the 
water supply impacts?
    Given the change in water allocation and the need for mitigation, 
not to mention the impacts that climate change is having on water 
supply, should all options at least be considered and analyzed?
    Answer. The settlement negotiations were the subject of a Court 
Order requiring confidentiality, so I am not at liberty to describe 
them but I will say that Mr. Upton's characterization is misleading. 
NRDC does not oppose economical and environmentally benign new water 
storage facilities. In fact, we have devoted considerable effort and 
resources to supporting public funding of new ground water storage and 
other new water management measures to benefit Friant water users and 
other California water districts, even before the Settlement was 
achieved, including our support for various state propositions totaling 
billions of dollars that have helped to fund San Joaquin Valley farmers 
and water districts seeking to expand their own storage capabilities 
and obtain other water supply benefits. However, the idea that a 
settlement of an 18 year old lawsuit focused on the federal 
government's abuses of California's environment in its operation of an 
on-stream surface storage facility should include building yet another 
environmentally harmful on-stream surface storage facility is absurd on 
its face and was never seriously considered by the Settling Parties. As 
for mitigating water supply impacts of the Settlement, I would note 
that I am unaware of any equivalent mitigation provided by the Friant 
water users or the Bureau of Reclamation over the last 60 years to 
address the egregious third party impacts caused to Delta farmers, 
Delta communities, North Coast fishing communities, and numerous other 
critical interests caused by the illegal operation of the Friant Unit 
of the CVP and its resulting degradation of California's second longest 
river. Perhaps that is the mitigation element that is missing from this 
legislation. As for mitigating the impacts to those who have benefited 
over the past 60 years from operation of the Friant Unit, such 
mitigation has already been addressed: the Settlement and the pending 
legislation contain numerous measures intended to reduce, avoid or 
mitigate water supply impacts, and the Friant farmers and their 
districts and the federal and state agencies have all approved those 
mitigation provisions. In addition, the Friant water users have 
indicated that they intend to devote their own resources, and seek 
additional public resources, to pursue other water management measures 
to meet their water supply needs, as they have always done and would 
presumably continue to do whether or not there is a settlement.
                      Questions From Senator Smith
    Question. S. 27 includes a provision directing NOAA Fisheries to 
designate the reintroduced salmon on the San Joaquin River as an 
nonessential, experimental population under section 10(j) of the 
Endangered Species Act. I understand this designation would exempt that 
population from the prohibition on ``take'' in section 9 of the ESA.
    Including this provision in S. 27 implies that section 10(j) can be 
utilized to designate a population as nonessential, experimental, even 
when that population will later intermingle with non-designated 
populations in its lifecycle. And that it can be implemented before the 
reintroduction of a threatened species.
    1. Is this your understanding of the provision in S. 27?
    2. If Congress were to enact this bill, don't you agree that it 
should promote the use of the 10(j) provision as an essential tool to 
accelerate the reintroduction and recovery of threatened anadromous 
fish like salmon and steelhead?
    Answer. 1. No, that is not my understanding of the provision. 
Section 10 of S. 27 sets out a provision, similar to the normal 
application of section 10(j) of the ESA for designating experimental 
populations and the handling of take limitations for such experimental 
populations. Due to the carefully negotiated terms of section 10 of S. 
27, I believe it would be unwise and unhelpful for me to try to 
paraphrase its terms. However, I would note that the US Department of 
the Interior did provide the Settling Parties with an informal 
``section by section analysis'' of S. 27, which includes a description 
of Section 10 and which we understand has been submitted to the 
Committee and may be helpful in this regard.
    2. Whether Congress should use or promote any particular tool to 
accelerate reintroduction or recovery of threatened anadromous fish 
ultimately depends on the unique factual situations around the country. 
In general, we believe Congress should be promoting more aggressive 
water conservation, sensible market pricing of federal water supplies, 
sensible market pricing of the power derived from federal water 
projects, and vigorous implementation of existing provisions of the 
ESA, NEPA, the Clean Water Act, applicable state laws, and other 
environmental protections if Congress is to be serious about helping 
our beleaguered anadromous fish species. As for Section 10 of S. 27, it 
states explicitly that the situation on the San Joaquin River ``is a 
unique and unprecedented circumstance'' and that ``Nothing in this 
section is intended or shall be construed . . . (2) to establish a 
precedent with respect to any other application of the [ESA] or the 
Federal Power Act (16 U.S.C. 791a et seq.).'' That language was 
essential to reaching agreement on S. 27 and without it there would not 
have been consensus support for the legislation. Accordingly, if the 
intent of the question is whether Section 10 of S. 27 should be used as 
``a precedent with respect to any other application of the Endangered 
Species Act,'' clearly that would be directly contrary to the intent 
and language of S. 27 and we would have to oppose such an approach.
                                 ______
                                 
                         San Joaquin River Water Authority,
                                       Los Banos, CA, May 29, 2007.
Hon. Jeffrey Bingaman,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Re: S. 27

    Dear Senator Bingaman: I am writing in response to your questions 
relating to the above-referenced hearing and legislation. I am 
responding to you in my capacity as the Executive Director of the San 
Joaquin River Exchange Contractors Water Authority, a joint powers 
agency comprised of four California water agencies (hereafter 
``Exchange Contractors'').
    I have paraphrased each of your questions and respond as set forth 
below.

    Question 1. Are the Exchange Contractors confident that the $900 
million in state and federal funding is sufficient to implement the 
settlement in a manner that protects the interest of the Exchange 
Contractors?
    Answer. The Exchange Contractors participated actively in the 
efforts to negotiate the subject legislation. Our support for the 
legislation to restore salmon to the upper San Joaquin River was 
contingent upon the restoration program not having an adverse impact on 
the Exchange Contractors' member agencies, their water supply customers 
or landowners adjacent to the San Joaquin River. These farmers, whose 
properties abut the San Joaquin River, would be severely impacted if 
the restoration program is not conducted in a manner that mitigates, up 
front, the impacts that will occur once water flow is restored to the 
San Joaquin River and endangered species are present.
    As I testified previously, our greatest fear is that only a portion 
of the project would be built, similar to the failed efforts by the 
Bureau of Reclamation to construct drainage facilities in the San 
Joaquin Basin. Therefore, we insisted the legislation include a 
provision requiring that any portion of the existing levee system and 
any future levees to be constructed be implemented on a project by 
project basis. (See Section 9(a)(2)) This provision will require 
Reclamation to analyze how the program will be implemented, identify 
each key phase and implement each project in such a manner that it can 
be pursued to completion before proceeding to the next phase. For 
example, if the upper most reach of the San Joaquin River below Friant 
Dam, referred to as Reach 1, is to be restored, then the restoration 
should be done pursuant to an implementation plan that addresses all 
issues in that reach of the River before allowing water for fisheries 
to be restored to lower reaches.
    We expect, from a practical perspective, that Reclamation will 
develop Reaches 1, 2 and 3 essentially at the same time. However, 
before doing so, it will be essential that they determine all of the 
steps necessary to create habitats sufficient to protect the various 
life stages of the reintroduced spring run salmon and to protect the 
adjacent landowners from any flooding or water seepage that may occur 
once the restoration flows are released. It will also be essential that 
downstream bypasses are utilized to divert water out of those portions 
of the stream that have not been protected. In addition, until channel 
improvements and all mitigation measures are completed in each 
particular reach, the flows must be limited to existing capacity of the 
river channel.
    The legislation also requires that Reach 4B be treated separately 
from the other portions of the River. (See Section 9(g)) Reach 4B is 
particularly challenging because its current channel capacity is 
between 20 and 50 cfs, and yet the restoration program would require 
flows as high as 4,500 cfs. Reach 4B will be studied and funded 
separately from the rest of the project if there are not sufficient 
funds remaining to address the needs in that Reach. Further, Reach 4B 
is likely the most expensive portion of the project. In the Reach 4B 
area, significant amounts of acreage will have to be taken out of 
production and acquired either from willing sellers or through eminent 
domain. (See Section 5(b)) In addition, levees and slurry walls will be 
necessary in order to prevent the adjacent farmland from being either 
flooded on the surface or causing the groundwater basin to rise to a 
level such that the root zone is flooded, thereby making it impossible 
to productively farm the area.
    Question 2. Do the Exchange Contractors believe that the settlement 
requires that levee protections be incorporated with channel 
restoration works? If so, how might this affect the cost estimates that 
currently exist for the settlement?
    Answer. Levees are an essential part of the restoration program. In 
fact, levees are the main cost component of the restoration effort. 
While the in-stream measures to create habitats are costly, their cost 
is dwarfed by the mitigation measures that will be needed to protect 
adjacent landowners and water users from the impacts of the restoration 
program. As I stated in my testimony:

          To make this restoration possible, substantial physical 
        changes need to be made both to the River and to facilities 
        downstream of the dam. It will be essential to protect the 
        downstream water systems and the adjacent private property and 
        livelihoods of the farmers and other citizens along the River.
          Among the changes to the River that will be needed are in-
        stream improvement measures, rehabilitation of miles of 
        existing levees to protect flooding and seepage, the 
        construction of new levees where none exist, reconstruction of 
        water diversion facilities and small dams that were not 
        constructed in a manner consistent with the new operating 
        regimen that will be required under the settlement, 
        improvements to some of the downstream flood by-pass 
        structures, and construction of fish screens.

    All of the parties understood that the aforementioned work was 
integral to the restoration program.
    The Exchange Contractors relied on engineering work by the firm of 
CH2MHill in preparing their cost estimates. CH2MHill had recent 
experience on the Sacramento River constructing levees. We know that 
levee construction costs and levee rehabilitation vary by site. We have 
assumed that there are no special conditions existing along the San 
Joaquin River that would drive levee restoration and levee construction 
costs higher than those anticipated. Therefore, based upon what we know 
today, we believe that the identified state and federal funding of $900 
million is an appropriate estimate for the various reaches of the San 
Joaquin River, with the exception of Reach 4B.
    If you have any further questions, I would be pleased to respond.
            Very truly yours,
                                           Steve Chedester,
                                                Executive Director.
                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

                            Plainview Mutual Water Company,
                                 Strathmore, CA, February 16, 2007.
Supervisor Allen Ishida,
Chairman, Tulare County Board of Supervisors, 2800 West Burrel, 
        Visalia, CA.
    Dear Supervisor Ishida: Plainview is a very poor community with 
residents depending primarily on farm labor to support their families. 
On behalf of the Board of Directors of the Plainview Mutual Water 
Company, I wish to express my concern regarding the imminent loss of 
water from the Friant Kern canal to our area. Our community water 
system serves about 200 families with drinking water. One of our two 
water wells has already been shut down due to high nitrate and DBCP 
levels. We are totally dependent on our remaining 50 year old well 
which currently meets drinking water standards. As you know we are in 
the process of designing a new well with funding approved by USDA Rural 
Development.
    Though we are not against the settlement, our concern is that the 
effects of the settlement between the US Bureau of Reclamation and the 
National Environmental Defense Council will reduce the supply of 
surface water in our area via the Friant-Kern canal. This will likely 
result in the area's farmers pumping more groundwater which will 
further lower our water table. This will result in increased pumping 
costs and may increase the concentration of contaminants in our 
existing and new water wells.
    Attached are graphs from the State Department of Water Resources 
indicating the level of water in three wells in our area that have been 
monitored since the early 1960's.* As you can see, the ground water 
level has improved considerably since Friant water was imported into 
our area by the Lindmore Irrigation District. We are very concerned 
that this level will continue to drop as a result of the loss of water 
to our area.
---------------------------------------------------------------------------
    * The attachments have been retained in subcommittee files.
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    We ask that you take steps to help us and other communities protect 
our water resources and our community's future. Thank you for your 
assistance.
            Sincerely,
                                        Francisco Martinez,
                                                         President.
                                 ______
                                 
                            Community Water Center,
              California Rural Legal Assistance Foundation,
                                    Visalia, CA, February 19, 2007.
Senator Barbara Boxer,
Hart Senate Office Building, Washington, DC.
Re: Mitigation to address water loss as a result of the San Joaquin 
River Settlement

    Dear Senator Boxer: The Community Water Center is a non-profit 
organization based in Visalia, California, that works to ensure that 
all communities can have access to safe, clean and affordable drinking 
water. The Community Water Center and the California Rural Legal 
Assistance Foundation write to you today on behalf of our many client 
communities to ask for inclusion of a mitigation program to address the 
impacts that the San Joaquin River Settlement will have on communities 
in the Southern San Joaquin Valley.
    As you may already know, there are hundreds of thousands of 
residents in the San Joaquin Valley that do not have access to safe 
thinking water in their homes. Most of these Californian's are low-
income people of color and live in small, unincorporated areas of the 
valley and have either contaminated private wells or are served by a 
small public water system whose wells cannot meet safe drinking water 
contaminant limits.
    In addition, there are many more communities that live on the verge 
of loosing safe drinking water. In Tulare County alone, 30% of the 
public water systems are just below maximum contaminant levels and rely 
on a few groundwater wells to provide all of their drinking water. 
Should groundwater contamination levels rise even slightly, many more 
communities will be unable to provide safe drinking water to their 
residents. This is true for Tulare County, but also for the other 
counties of the Southern San Joaquin Valley.
    The San Joaquin River Settlement will result in very real, direct 
and indirect impacts on many of our states most disadvantaged 
communities. While we support the settlement and the restoration of the 
San Joaquin River, we urge Congress to include a ``third-party'' 
mitigation program to address its impacts on those of us not at the 
negotiating table, and unable to fund mitigation on our own.
    Specifically the Settlement will result in a reduction of clean 
surface water deliveries to the Southern San Joaquin Valley through the 
giant Canal system, as water is diverted back to the San Joaquin River. 
This reduction will affect communities in the following three primary 
ways:

          1. Less fresh water will be put into our groundwater aquifers 
        to dilute contaminated groundwater supplies causing 
        contamination levels to increase. Last month the Hydrogeology 
        Journal published a study on the nitrate contamination in 
        groundwater in the eastern San Joaquin Valley, which found that 
        ``surface water supplied for irrigation has low nitrate 
        concentrations and using this water would result in lower 
        concentrations in recharge than groundwater-derived irrigation 
        water. . . . (R)ecycling of groundwater through groundwater 
        pumping and reapplication of irrigation water was likely a 
        dominant process in the study area . . . (and) is likely to 
        result in increasing concentrations of nitrate even without 
        increasing fertilizer applications.'' \1\ Even small increases 
        will push many communities over legal limits of common 
        contaminants, such as nitrates, meaning millions of dollars in 
        new infrastructure costs and health impacts and emergency 
        bottled water costs for many of California's poorest families.
---------------------------------------------------------------------------
    \1\ ``Temporal trends in concentrations of DBCP and nitrate in 
groundwater in the eastern San Joaquin Valley, CA, USA'', Hydrogeology 
Journal, January 2007.
---------------------------------------------------------------------------
          2. With less water coming into our aquifers, agricultural 
        operations, our growing cities, and industrial water uses will 
        turn towards increased groundwater pumping, drastically 
        increasing the overdraft that already affects our region. 
        Overdraft will mean that many private wells will go dry and 
        many of our poorest families may suddenly have no water at all. 
        Additionally, small communities will have to drill deeper 
        wells, which not only will cost far beyond the means of these 
        systems, but may result in having to use supplies with natural 
        contaminants that occur at deeper levels, such as arsenic, 
        manganese and sulfur.
          3. Communities, such as Tonyville, Strathmore, Orange Cove, 
        Terra Bella and Lindsay, rely on treated canal water for their 
        primary drinking water supplies; reduced surface water supplies 
        will likely cause these systems to use contaminated 
        groundwater, which often has levels of nitrates far above legal 
        limits. Furthermore, given that the current contract 
        allocations of surface water are not meeting the existing 
        drinking water needs of all the communities within the place of 
        use, the settlement does not address the exacerbated need for 
        surface water of these groundwater dependent communities whose 
        groundwater will be further harmed through the settlement.

    While California has passed bond measures that are helping small 
drinking water systems with contaminants already over legal limits, 
these bonds will do nothing to mitigate the impact this Settlement will 
have on small, disadvantaged communities in the San Joaquin Valley. For 
that we are asking Congress to create a series of mitigation programs 
that will address these very real, both direct and indirect impacts 
that this Settlement will have.
    The following are programs that should be included in a mitigation 
program:

          1. Groundwater Quality Improvement Program for the Southern 
        San Joaquin Valley. This program should fund groundwater 
        improvement programs to mitigate the reduction in clean surface 
        water into our aquifers. The primary projects under this 
        program would include, but not be limited to, infrastructure 
        for local and regional wastewater and drinking water treatment 
        systems. Priority funding should be for disadvantaged, low-
        income communities to lessen the input of common groundwater 
        contaminants, such as nitrates and salts. Complementary to the 
        infrastructure investments are the pollution prevention 
        investments including regulatory and educational programs to 
        require and promote best management practices for irrigated 
        agriculture, food processors, and dairies, all of which 
        contribute to our most problematic drinking water contaminant 
        (nitrate) in our region's aquifers. Currently there is 
        estimated to be over $4.4 billion needed for wastewater and 
        drinking water infrastructure projects in the San Joaquin 
        Valley.\2\
---------------------------------------------------------------------------
    \2\ This number is based on estimates for water projects eligible 
under the California Partnership for the San Joaquin Valley's Water 
Recommendations.
---------------------------------------------------------------------------
          2. Groundwater Overdraft Mitigation Program for the Southern 
        San Joaquin Valley. This program would fund projects that 
        reduce groundwater pumping in the region's over-drafted 
        groundwater aquifers. It should fund recycled water or dual 
        plumbing programs that enable less water to be used overall by 
        utilizing highly treated wastewater for irrigation and similar 
        applications. It should also fund water use efficiency 
        programs, both urban, rural and agricultural, and conjunctive 
        use or water banking programs that result in mitigating 
        overdraft. In addition, it should fund small systems and low-
        income private well owners who have to drill further to access 
        clean water.
          3. Community Water Access Program for the Southern San 
        Joaquin Valley. This program would fund feasibility studies and 
        implementation of regional projects that enable small, 
        disadvantaged communities to exchange groundwater for cleaner 
        surface water and build regional surface water treatment 
        plants. Ultimately to be sustainable, communities must have a 
        diverse source of water, including groundwater and surface 
        water supplies. Surface water is often owned by agricultural 
        interests and only a handful of small communities can access 
        those cleaner water supplies. Most communities cannot afford 
        the inflated cost of purchasing this water, or to construct the 
        necessary surface water treatment plants on their own. Through 
        this program and local, state and federal initiatives these 
        projects will finally provide sustainable solutions for local 
        communities that have been unable to access the surface water 
        that runs straight through canals bordering their homes, and 
        used for irrigation or sold to Southern California cities.

    While we support the San Joaquin River Settlement, we urge any 
implementation package to include these vital mitigation programs to 
address the very real direct and indirect impacts on many of our 
State's poorest communities.
    Thank you for your consideration of our request. Should you have 
any questions or concerns please feel free to contact Laurel Firestone 
at (559) 733-0219 or Martha Guzman at (916) 446-7902. We look forward 
to working with you to ensure that all Californian's can have access to 
safe, clean and affordable drinking water.
            Sincerely,
                                   Laurel Firestone,
                                           Co-Director & Attorney at 
                                               Law,
                                           Community Water Center.
                                   Martha Guzman,
                                           Legislative Analyst,
                                           California Rural Legal 
                                               Assistance.
                                 ______
                                 
                                     Self-Help Enterprises,
                                    Visalia, CA, February 26, 2007.
Supervisor Allen Ishida,
Chairman, Tulare County Board of Supervisors, 2800 West Burrel, Visalia 
        CA.
Re: Local Mitigation needed as a result of San Joaquin River Settlement

    Dear Supervisor Ishida: Self-Help Enterprises (SHE) has over 42 
years of experience in providing housing and community development 
services in the San Joaquin Valley. SHE has assisted in the development 
of over one hundred water and wastewater projects in disadvantaged 
communities providing nearly 20,000 families with potable drinking 
water and environmentally safe wastewater systems.
    Basic access to an adequate supply of clean water is a priority 
concern for all Californians, including residents of the small, low-
income, rural communities in Tulare County and the rest of the San 
Joaquin Valley. There are already significant water supply and quality 
issues in the Valley including Tulare County. These issues are 
especially relevant to small communities and unincorporated areas where 
small public water systems exist or where residents are dependent on 
private domestic wells, many of which cannot meet safe drinking water 
contaminant standards.
    We recognize the value of the settlement between the US Bureau of 
Reclamation and the National Environmental Defense Council and support 
the settlement. At the same time, we are deeply concerned about the 
adverse impacts the settlement will have on the local communities we 
care about. The settlement will significantly reduce the supply of 
surface water to Tulare County via the Friant-Kern canal. The likely 
result will be increased pumping of more groundwater which will further 
lower our water table. We are concerned that the net result will 
exacerbate the water supply and quality conditions that already affect 
economically disadvantaged communities.
    There are many communities that already cannot provide safe 
drinking water and many that are on the verge of loosing safe drinking 
water. Should groundwater contamination levels rise even slightly due 
to a reduction of the availability of fresh surface water, many more 
communities will be unable to provide safe drinking water to their 
residents. Now that the settlement is virtually a reality, we believe 
it is necessary to move ahead and deal with these issues.
    Attached are some graphs from the State Department of Water 
Resources indicating the level of water in some wells in the Lindsay-
Strathmore areas.* As you can see, the ground water level has improved 
considerably since Friant water was imported into eastern Tulare County 
and made available in 1950. We are very concerned that this level will 
drop significantly as a result of the settlement and that the water 
future of our County and its disadvantaged communities will be in 
jeopardy.
---------------------------------------------------------------------------
    * The graphs have been retained in subcommittee files.
---------------------------------------------------------------------------
    Therefore, we ask that you take steps to help these communities. We 
understand that a combination of resources including federal and state 
will be needed to help mitigate these local impacts. We ask that you 
contact the appropriate state and federal bodies to help our area which 
has depended on and built its economy on this water for over a half a 
century.
            Sincerely,
                                               Peter Carey,
                                                     President/CEO.
                                 ______
                                 
                  Association of California Water Agencies,
                                                       May 3, 2007.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Hon. Nick Rahall,
U.S. House of Representatives, Washington, DC.
Hon. Grace Napolitano,
U.S. House of Representatives, Washington, DC.
Hon. Don Young,
U.S. House of Representatives, Washington, DC.
Hon. Cathy McMorris Rodgers,
U.S. House of Representatives, Washington, DC.
Re: S. 27 and H.R. 24--San Joaquin River Settlement Act

    Dear Senator Feinstein and Representatives: The Association of 
California Water Agencies, a statewide association of public agencies 
whose 440 members are responsible for about 90 percent of the water 
delivered in California, is pleased to write in support of S. 27 and 
H.R. 24 the San Joaquin River Restoration Settlement Act. If passed, 
this legislation will approve and fund the recent landmark settlement 
on the San Joaquin River.
    S. 27 and H.R. 24 authorizes the Secretary of the Interior to carry 
out a comprehensive restoration program on the San Joaquin River. 
Settlement parties have informed ACWA that the agreement addresses 
third-party impacts and has the possibility to improve water quality 
conditions in the Delta. During the implementation phase, ACWA looks 
forward to working with Interior and other responsible entities to see 
that the protections in the legislation are carried forward.
    This settlement ends 18 years of difficult litigation and is 
broadly supported by leaders throughout California, including Governor 
Schwarzenegger, Senators Feinstein and Boxer and a bipartisan group of 
the California congressional delegation. S. 27 and H.R. 24 are also 
supported by the National Water Resources Association, the Friant Water 
Users Authority, Natural Resources Defense Council, the Bureau of 
Reclamation, the Department of Water Resources, and numerous other 
federal, state, and local entities.
    ACWA requests your leadership in moving this important legislation 
forward to help restore a major tributary to the San Francisco Bay-
Delta Estuary.
            Sincerely,
                                           Stephen K. Hall,
                                                Executive Director.
                                 ______
                                 
                               Contra Costa Water District,
                                         Concord, CA, May 22, 2007.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Hon. George Radanovich,
U.S. House of Representatives, Rayburn House Office Building, 
        Washington, DC.
Subject: Support on S. 27 and H.R. 24--San Joaquin River Restoration 
Settlement

    Dear Senator Feinstein and Representative Radanovich: The Board of 
Directors of the Contra Costa Water District (CCWD) has adopted a 
position of Support on S. 27 and H.R. 24--San Joaquin River Restoration 
Settlement. This bill authorizes the implementation of the San Joaquin 
River Restoration Settlement. The purpose of the settlement is to fully 
restore the San Joaquin River and to mitigate the impact of water 
losses on those who have long-term contractual rights and obligations 
to the Friant system within the Central Valley Project.
    The settlement resolves years of litigation and represents a 
landmark accord between environmental and fishing groups, Central 
Valley farmers, and the state and federal governments to undertake one 
of the most significant river restoration projects. CCWD has a long 
history of concern over water quality in the San Joaquin River and its 
impacts on the Delta. This legislation would give the Secretary of the 
Interior the authority to take the actions to restore the San Joaquin 
River which may ultimately lead to improved water quality in the Delta.
    The District commends your leadership on this issue and appreciates 
your hard work and dedication to your constituents.
            Sincerely,
                                        Joseph L. Campbell,
                                                         President.
                                 ______
                                 
             Many in Tulare Co. Can't Count on Clean Water
                    By Mark Grossi / The Fresno Bee
    EAST OROSI--The peaks of Sequoia National Park offer a breathtaking 
backdrop for this farmworker town, but resident Maria Elena Orozco 
would gladly trade the view for the pristine snowmelt from those 
mountains.
    She and the other 400-plus residents of East Orosi periodically get 
notices reminding them not to drink the water from their taps.
    The town's two wells have dangerous levels of a banned pesticide 
and nitrates, which come from fertilizers, septic tanks and sewage 
plants. Many residents worry about the health of their families.
    ``A lot of kids are having problems,'' said Orozco, 45, who has 
three daughters. ``They're hyperactive and sick.''
    The problem is common for residents in eastern Tulare County at the 
foot of the Sierra Nevada.
    Cutler, next door to East Orosi, is under a state order to clean up 
nitrates in the town's drinking water.
    There have been contamination problems with wells in Woodlake, 
Lemon Cove, Tooleville, Woodville and Yettem. Other towns, such as 
Strathmore and Lindsay, have a history of ground-water contamination, 
though they have alternative water sources now.
    ``The east side of Tulare County has had historical high nitrate 
and [pesticide levels] due to the citrus industry's pesticide and 
fertilizer practices in the past,'' said Richard Haberman, supervising 
sanitary engineer for the state Department of Health Services.
    It is time for elected officials to deal with ``a drinking water 
crisis here,'' said Laurel Firestone, co-director of the Water 
Community Center, a Visalia-based nonprofit group.
    ``The contamination has been confirmed,'' she said. ``It's not a 
mystery. So far, we don't have the political will to do something about 
it.''
    The center has organized residents in Cutler, East Orosi, Ducor, 
Tonyville and other communities.
    They push to clean up the water, drill new wells or hook up to 
other sources of water, such as river supplies.
    A new well can cost more than $150,000, and the price tag on a new 
water-treatment plant is in the millions. Small communities must rely 
on government grants and low-cost loans, most experts said.
    East Orosi is in line for federal money that has been dedicated to 
cleaning up water across the country.
    But the problem is not just affecting public water systems, such as 
the one in East Orosi. Firestone cites a state study that last year 
revealed about two of every five private wells tested in Tulare County 
had nitrate contamination. About 180 private well owners volunteered 
for the study.
    Tulare County's contamination appears to be far more widespread 
than in northern Central Valley counties where the State Water 
Resources Control Board tested private wells, state officials said.
    Yuba, El Dorado and Tehama counties had a combined total of 11 
wells with high nitrate levels. Tulare County had 75.
    The most effective solution has been simply to pipe in river water, 
as Lindsay and Strathmore do, said consulting engineer Dennis Keller, 
who works for many area water districts. He has been involved in Tulare 
County ground-water issues for 36 years.
    River water--also called surface water--must go through a treatment 
process before it can be used in homes. The price tag for water 
treatment in the Cutler-Orosi area would be about $16 million, Keller 
said.
    ``Over time, we've seen [public water] systems beginning to change 
over from ground water to surface water,'' he said. ``We're studying 
the feasibility of building a treatment plant for Cutler, Orosi and the 
surrounding area.''
    Water center co-directors Firestone and Susana De Anda are working 
with Cutler-Orosi area residents to lobby for improvements.
    Bertha Diaz, 37, of East Orosi has become active in the campaign.
    Diaz spends $57 a month for water service, she said, and an 
additional $61.25 a month for bottled water so her four children can 
have safe drinking water.
    The freeze last month created more misery for her family, depriving 
Diaz of work in the citrus industry. She said she receives about $300 
in state assistance, which does not cover her family's bills.
    ``It is a heavy burden,'' said Diaz, a single parent of a blind 
child who has diabetes.
    Other area residents said they are beginning to wonder whether 
contaminated water is connected to unexplained stomach ailments among 
children, cancer deaths and aborted pregnancies.
    No medical studies have been conducted to show whether any of those 
East Orosi-area health problems are related to water contamination.
    But nitrates have been linked with cancer, pregnancy risks and a 
blood disorder called methemoglobinemia, or ``blue-baby syndrome.''
    Health experts said they have not received reports of blue-baby 
syndrome in the area.
    The banned farm pesticide DBCP, or dibromochloropropane, also is a 
problem in east county wells.
    The chemical, considered a cancer risk, can remain in ground water 
for many decades after being applied.
    Geology also makes the east-county towns more susceptible to 
underground water problems, said Mark Bairstow, environmental health 
specialist for Tulare County.
    East-side wells are shallower than wells to the west. There is less 
space for water in the soil between the ground surface and the bedrock 
below the Valley.
    ``You're getting higher concentrations of nitrates because there is 
less water,'' Bairstow said.
    ``As you move west, there's a larger volume of water.''
    Activists also suspect dairies might be fouling wells with 
nitrates.
    Tulare County is the No. 1 dairy county in the nation, with more 
than 800,000 animals--twice the number of people who live in the 
county.
    Authorities said nitrates can come from dairy waste, which soon 
will be more strictly regulated by the Central Valley Regional Water 
Quality Control Board.
    But in East Orosi, authorities suspect the nitrate contamination 
comes from surrounding orchards and possibly private septic systems.
    No one knows for sure, but Elijio Adame, 71, said he is tired of 
it.
    ``I've lived here since I was 13,'' he said. ``It wasn't like this 
years ago. We need help now.''
                                 ______
                                 
               Statement of Cannon Michael, Los Banos, CA
    My name is Cannon Michael and I assist my uncle in operating our 
family farm, Bowles Farming Company, Inc., located near Los Banos, 
California. A good portion of the land we farm is adjacent to the San 
Joaquin River along the stretch now known as Reach 4b. Having had an 
opportunity for input into this legislation, I am writing you for two 
purposes, first to testify in support of the legislation and second, to 
share with you some concerns should the legislation not be implemented 
in the way we hope it will.
    I am a sixth generation Californian and my family has been involved 
with agriculture since the mid 1800's. My great-great-great grandfather 
came to America, like so many immigrants have, in search of the promise 
of better life and freedom. He arrived in California as a young man 
with little more than a dream of what could be.
    The San Joaquin Valley was no land of dreams for those who settled 
there in the 1800's. It has taken the united efforts of farmers, 
communities, state and local agencies and the federal government to 
make the valley the ``breadbasket of the world'' that it is today. The 
key component in the transformation of the valley has been a reliable 
supply of water. With the reliable water supply, and the protection 
from flooding, the San Joaquin Valley has become the most diverse and 
productive agricultural center in the world.
    I come before you today to testify on behalf of the farmers and 
citizens that will be affected by the proposed restoration of the San 
Joaquin River. We are not just ``Third Parties'' to this Settlement; we 
are families, community leaders, teachers, coaches, providers of food 
and fiber for our great nation. The restoration of the San Joaquin 
River has far reaching impacts for all the residents of the San Joaquin 
Valley. It is imperative that the Third Parties have a voice in this 
complicated, lengthy and costly process.
    For those of us located in Reach 4b, having a voice in the 
restoration process is of vital importance. The San Joaquin River holds 
to a defined channel in its upper reaches, but historically it would 
spread into many ``braided'' channels as it reached the flat valley 
floor in our area. The flows called for in the Settlement are 
exponentially greater than the existing capacity of Reach 4b and could 
severely impact the families that live and farm along this stretch. S. 
27: San Joaquin River Restoration Settlement Act, calls for the 
restoration's impact on Reach 4b to be studied carefully and completely 
prior to introducing any high level flows.
    I understand that restoration of Reach 4B will cost in the range of 
$400 million. Cost-benefit is one measure that will have to be 
considered when studying the feasibility of using this reach of the 
river. It is important that you understand the challenge of moving fish 
through this reach. First of all, a sizeable amount of privately held 
land will have to be acquired in order to create a stream channel of 
sufficient width and depth to convey flow of at least 4500 cfs. The 
valley floor here is very flat and the water table is high, so highly 
engineered levees will be needed to protect the adjacent lands from 
surface and sub-surface flooding. The new stream channel will also need 
to be constructed in a fish friendly manner. Even after that, this 
stretch of river has little elevation change, the slow moving water 
will be warm--approaching 80 degrees during the summer, no matter how 
much is released from Friant Dam. Reach 4b will, at best, be a hostile 
environment for fish.
    The San Joaquin River stretches for miles below the Friant Dam and 
every reach has its own unique characteristics. The proposed 
Restoration presents challenges for every mile of the San Joaquin and 
there are many landowners who will be affected. We all need a reliable 
water supply and our lands need to be protected from flooding. We are 
mindful of the experience of water agencies and farmers in our area 
regarding the federal government's failure to complete the San Luis 
drain. We do not want to see a repeat of a half-finished project in 
this restoration program. If our water supplier agencies are adversely 
affected, we will be too. Therefore, it is essential that adequate 
funds be appropriated and that the third parties have a place at the 
table to make sure this program is implemented in a manner that doesn't 
cause us harm.
    In conclusion, this bill was crafted out of a collaborative effort 
by the parties to the litigation, state and federal agencies and the 
third party interests. This is the same type of collaborative effort 
that will be needed if the restoration of the San Joaquin River can 
ever truly be a success. Any changes to this bill could potentially 
subvert the positive results that it represents. I respectfully ask 
that you do not entertain any changes to this legislation.
                                 ______
                                 
 Statement of Chris Acree, Executive Director, Revive the San Joaquin, 
                               Fresno, CA
    Thank you for the opportunity to comment on S. 27 regarding the 
implementation of the Settlement Agreement. Revive the San Joaquin is a 
non-profit stakeholder organization representing citizens, community 
groups, and businesses that depend on the San Joaquin River as a vital 
public resource. The restoration Settlement Agreement marks a major 
shift in the management priorities for the river that will promote 
stewardship and balanced management to ensure the vitality of one of 
the State's most valuable natural resources. Support of this agreement 
will recognize an emerging spirit of cooperation within a region 
struggling to regain a healthy environment and build a vibrant economy.
    Revive the San Joaquin is looking forward to the San Joaquin River 
Restoration Program (SJRRP) and the Public Involvement Plan as a means 
to begin open and constructive talks about how best to restore this 
valuable public resource. It is only through this type of technical 
coordination and public participation that we can begin to explore the 
benefits of a revived river system, and get past the misconceptions 
that keep our region divided and cut-off from our public resources. The 
SJRRP will be the first attempt to manage an already productive water 
supply system in a way that can realize mutual benefits for a wide 
variety of users.
    The San Joaquin Valley is in the midst of a crisis over water as we 
inadvertently pollute and overdraft our groundwater aquifers and 
destroy the last remaining remnants of our riparian ecosystems. 
Returning water to the river channel will recharge aquifers more 
efficiently than any off-site recharge basin, and simultaneously revive 
river ecosystems. Without approval of the widely supported Settlement 
Agreement, we will pass up a monumental opportunity to improve our 
agricultural water supply, provide clean drinking water for 
communities, expand recreational opportunities, and reinvigorate an 
economy based on a lost and almost forgotten resource. Revive the San 
Joaquin promises to be involved in the restoration of this resource and 
contribute to the solutions that will build a stronger economy and a 
healthier environment.
                                 ______
                                 
   Statement of Clifford L. Marshall, Chairman, Hoopa Valley Tribe, 
                               Hoopa, CA
    For thousands of years the Hoopa Valley Tribe has resided on the 
Trinity River. The Trinity River is the focal point of our culture, 
religion and economy. In its natural course the river rises in the 
Trinity Alps, flows through the heart of our reservation in Humboldt 
County to its confluence with the Klamath River and then to the Pacific 
Ocean. With the Bureau of Reclamation's completion of the Trinity River 
division of the Central Valley Project (CVP) in 1963, the Trinity River 
has effectively become an artificial tributary of the Sacramento/San 
Joaquin watershed and the only source of imported water to the Central 
Valley. The construction and operation of the Trinity River division 
diverted up to 90 percent of the annual flow of the Trinity River 
through a tunnel into the Central Valley for use as far south as the 
San Joaquin Valley. For 45 years, that diversion has brought 
astonishing wealth to water and power beneficiaries in the Central 
Valley. It has also provided significant benefits to California and the 
Nation.
    The price of that wealth was severe reductions in Trinity River 
fish populations and economic and cultural devastation to the Hupa 
people and the north coast communities who rely on the Trinity River. 
The seriousness of this situation is evidenced by the Secretary of 
Commerce's July 2006, declaration of a Fishery Resources Disaster for 
California's north coast and southern Oregon fishery under section 
308(b) of the Interjurisdictional Fisheries Act of 1986 that includes 
the Trinity River fishery. The disaster was caused by severely reduced 
Klamath/Trinity River fall Chinook fish populations.
    Decades of bipartisan effort by our Tribe and many others, 
supported by past and present members of Congress and successive 
Administrations, has produced critical legislation intended to restore 
our river and the natural environments elsewhere in California that 
have been severely damaged by the construction and operation of the 
CVP. The centerpiece of the restoration effort is the Central Valley 
Project Improvement Act (CVPIA) (Public Law 102-575 Title XXXIV, 
October 30, 1992, 106 Stat. 4706). The CVPIA establishes environmental 
restoration as a CVP project purpose and requires CVP water and power 
contractors pay for restoration costs.
    My testimony addresses the relationship between the San Joaquin 
River restoration program that would be authorized by S. 27 and the 
Trinity River restoration program authorized by section 3406(b)(23) of 
the CVPIA. We support fishery restoration efforts generally in 
California. However, adoption of the San Joaquin River settlement 
should not come at the expense of, or in opposition to, the CVPIA's 
other environmental restoration provisions, particularly the Trinity 
River restoration program which is intended to protect fishery 
resources that the United States holds in trust for our Tribe. We are 
committed to work with the Department of the Interior and House and 
Senate members on a legislative plan that honors the trust 
responsibility, secures needed restoration funding, and assures timely 
implementation of restoration. We have discussed this with Interior 
Department representatives and believe that there is a path to fair and 
feasible protection of our tribal trust resources. We urge that S. 27 
not be enacted until the legislation along the lines we have described 
for the Trinity River is in place.
    The 2000 Trinity River Restoration Record of Decision 
(ROD)implemented section 3406(b)(23) of the CVPIA. It identified a 
suite of actions whose goal is effective restoration of fisheries 
critical to the Hoopa Valley Tribe and the economic stability of the 
fisher-dependent communities of northern California and southern 
Oregon. The ROD established an administrative infrastructure including 
an inter-governmental management council (Trinity Management Council 
(TMC)), and stakeholder advisory group to assist the Secretary with 
implementation. However, after six years of implementation, the program 
suffers for lack of sufficient funding that has compromised restoration 
science and program management.
    In 2004, the TMC published its Trinity River Restoration Program 
Evaluation, Final Report (29 March 2004). Among its findings were that 
ROD implementation was being poorly documented, hindering the ability 
to assess the relationships between program outputs and resultant 
outcomes. Many of the findings were to be addressed by following 
specific recommendations made by a TMC sub-committee in June 2006. In 
March, regional officials for the Bureau of Reclamation and the U.S. 
Fish and Wildlife Service pledged to provide administrative solutions 
for the issues raised in the TMC report.
    Chronic under-funding for the Trinity Program undermines that 
pledge, however. It has led to delays in construction of habitat 
projects; site construction will only be 40% completed relative to the 
ROD's benchmark for 2007. Under funding also has compromised collection 
of scientific data necessary to support the Adaptive Environmental 
Assessment and Management (AEAM) portion of the program mandated by the 
ROD. Under funding has stalled development of the Integrated Assessment 
Plan (IAP), the cornerstone of the Trinity River restoration science 
program's scientific component. Year after year the Tribe has taken 
stop gap measures to fund restoration. In the first seven months of 
Fiscal Year 2007 alone, the Tribe has advanced approximately $700,000 
of its own funds to carry out key scientific components of the 
restoration program because funding was not made available by the 
Bureau of Reclamation in a timely fashion. In effect, the federal 
trustee's decisions not to request adequate funding in the budget 
process results in the tribal trust beneficiary assuming a burden that 
the CVPIA intended water and power contractors to bear.
    We believe that S. 27 will have a substantial impact on the Trinity 
River restoration program and the fishery resources that the United 
States holds in trust for our tribe. Specifically, the San Joaquin 
settlement would affect the financial structure established in the 
CVPIA to fund environmental restoration programs identified in that 
act. Section 3406(b) identifies 23 discrete environmental restoration 
activities, one of which is the Trinity River restoration program, 
section 3406(b)(23). The Trinity River restoration program was 
developed over the course of decades, adopted by the Secretary of the 
Interior with the concurrence of the Hoopa Valley Tribe in 2000, and 
judicially confirmed following challenges by CVP water and power 
contractors, who now stand to benefit from S. 27 at the expense of 
Trinity River restoration.
    The linchpins of the CVPIA's financing mechanism for environmental 
restoration are appropriations to the Bureau of Reclamation's Water and 
Related Resources account and the CVPIA Restoration Fund established by 
section 3407 of the CVPIA. The CVPIA identifies a number of revenue 
sources to be deposited into the CVPIA Restoration Fund, including 
charges assessed to water and power contractors. With respect to the 
CVPIA Restoration Fund, the CVPIA requires the Secretary of the 
Interior (Secretary) to collect assessments for the CVPIA Restoration 
Fund sufficient to make available $50,000,000 annually on a three-year 
rolling average basis (October 1992 price levels). Once the fish and 
wildlife restoration activities identified in section 3406(b) of the 
CVPIA are completed, the three-year rolling average balance in the 
CVPIA Restoration Fund is to be reduced to $35,000,000 and the payment 
ceiling for water and power users reduced to $15,000,000.
    Section 3406(c) of the CVPIA specially provides for the development 
of a fishery restoration program for the San Joaquin River between 
Friant Dam and the Mendota Pool. During the program's development the 
CVPIA directed the Secretary not to release any Friant Division water 
for restoration purposes. Instead, the CVPIA imposed a surcharge on 
Friant water use, which was deposited into the CVPIA Restoration Fund. 
The Friant surcharge and CVPIA Restoration Fund charges paid by CVP 
water and power contractors are treated as offsets against, not limits 
on, the contractors' cost share obligations created by the CVPIA. See 
sections 3407(a) and (b).
    The San Joaquin settlement involves litigation that has been 
pending for 18 years. Natural Resources Defense Council v. Kirk 
Rodgers, Civ. No. S-88-1658-LKKIGGH (E.D. Calif.). Although the 
litigation predates enactment of the CVPIA, the proposed settlement is 
integrally involved with the CVPIA and would affect the CVPIA's key 
provision for financing environmental restoration, including Trinity 
River restoration. Nonetheless the Tribe was never given an opportunity 
to participate in or even observe the negotiations. Section 7 of the 
San Joaquin settlement stipulation, which was filed in federal court in 
September 2006, states that it will benefit third parties who use San 
Joaquin River or Sacramento-San Joaquin Delta water. Section 7 also 
states that the settlement parties have neither the intention nor 
belief that the settlement will adversely affect third parties. 
However, after the settlement was finalized and made public, the Tribe 
raised the funding impact issue and the Department of the Interior 
concluded that the San Joaquin settlement will harm third parties 
including the Hoopa Valley Tribe and other beneficiaries of the Trinity 
River Restoration program by causing annually up to a 25 percent 
reduction in funds available from the CVPIA Restoration Fund. This 
impact results from the accounting provision in section 7 of S. 27 by 
means of which the extended Friant surcharges, though deposited into 
the San Joaquin River Restoration Fund, will be credited as if they had 
been deposited into the CVPIA Restoration Fund. The CVPIA provides that 
upon the termination of the Friant surcharge the water and power 
contractors will be obligated to fill the gap in receipts to the CVPIA 
Restoration Fund with increased assessments up to the statutory ceiling 
in section 3407 of the CVPIA.
    Section 7 of S. 27 was included at the behest of some third party 
CVP water and power contractors who represented that the CVPIA did not 
anticipate the termination of the Friant surcharge and that the 
attendant increase in CVPIA Restoration Fund charges to water and power 
contractors was inadvertent and unintended. The text of the CVPIA 
contradicts that suggestion. Moreover, if financing for CVPIA 
environmental restoration is modified according to section 7 of S. 27, 
third party CVP contractors will reap a financial windfall and a key 
funding feature of the CVPIA's environmental restoration program will 
be nullified. The reduction in CVPIA restoration funding that would 
result from S. 27 comes at a time when the restoration programs 
identified in section 3406(b) of the CVPIA, including the Trinity River 
program (3406(b)(23)), are experiencing substantial funding reductions 
and substantial delays in implementation. The consequences have been 
severe. In some cases, recent budgets have produced funding at less 
than 50% of program needs.
    The reduction in funding that would be caused by enactment of S. 27 
will create a conflict of interest between the Secretary's fiduciary 
duty as trustee for tribal fishing rights in the Trinity River and the 
interests of water and power contractors in the Friant Division. This 
conflict is set forth in the stipulation for settlement of the San 
Joaquin litigation. Section 30 states that if any third party 
challenges ``the terms and conditions of the settlement, Plaintiffs and 
the Friant Parties agree to cooperate with the Federal Defendants in a 
vigorous defense of such action as necessary.'' This essentially puts 
the United States in opposition to its fiduciary responsibility to the 
Hoopa Valley Tribe. Moreover, it requires the federal trustee to stand 
in conflict with its tribal beneficiary on an issue of fishery 
restoration that also affects thousands of non-Indians who are 
dependent on fishing. This commitment by the United States to the San 
Joaquin settlement is in direct conflict with judicial conclusions on 
the government's duty to Trinity River restoration:

          As a part of its harms-balancing analysis, the district court 
        concluded that ``the government is also in breach of its 
        general and specific independent federal trust obligation to 
        the Hoopa and Yurok Tribes.'' Order, 275 F. Supp. 2d at 1232. 
        It also stated that the purpose of the CVPIA Sec. 3406(b)(23) 
        was to ``fulfill[] the federal government's trust obligation to 
        the Indian Tribes.'' Id. at 1234. These statements are 
        significant in that they provide support for the court's order 
        implementing portions of the Preferred Alternative as 
        injunctive relief.

Westlands Water Dist. v. U.S. Dept. of Int., 376 F. 3d 853, 877 (9th 
Cir. 2004).
    Regarding Pay-As-You-Go (PAYGO), the Tribe understands and support 
the concepts of this initiative and its goals of dealing with a 
requirement to make the Federal Government operate within its means. 
However, I am very concerned that this initiative may have negative and 
unintended consequences to fulfilling federal trust obligations that 
the United States owes to Indian tribes. This seems to be exactly the 
problem that we are experiencing regarding restoring the Trinity River 
fishery resources that is required by law. PAYGO effects as they relate 
to Indian trust obligations must be kept in the proper context. Water-
related breach of trust issues were almost always the result of 
improper exploitation and over allocation of water resources, as in the 
case of the Trinity River. There is no doubt that the United States, 
the State of California, private water and power contractors and the 
citizens of the Nation gained tremendous benefits and wealth from the 
diversion of Trinity River flows to California's Central Valley. 
Unfortunately, the very Congressionally-mandated standards to protect 
the fishery resources of the Trinity River as a condition of diverting 
annual flows to the Central Valley were violated year after year by 
federally-authorized water diversions. It is clear from the 
administrative records of the Trinity River Division that, while 
Congress only authorized slightly more than half of the annual flows be 
diverted, in fact as much as 90% of the annual flows were diverted to 
the Central Valley. Only after decades of studies, Indian legal 
challenges and even legal challenges by water and power contractors, in 
2000 actions were taken to restore 47% of the annual flows and to carry 
out critical habitat restoration activities needed to restore the 
fishery to pre-Trinity River Dam levels.
    Despite the fact that section 3406(b)(23) is the only Indian trust 
provision in the CVPIA and that the ROD approved between the Tribe and 
the United States in 2000 identifies a minimum funding level of $14 
million annually (in February, the Bureau of Reclamation revised the 
funding need to approximately $16.5 million) to fulfill the federal 
trust obligations to the Tribe, only half the funding has been made 
available for this obligation. Instead, appropriations and funding 
generated by Trinity flow diversions has been primarily spent on 
activities in the Central Valley. Now, PAYGO seems to be the most 
recent excuse not to restore the Trinity River fishery or fulfill the 
federal trust obligations to our Tribe. PAYGO was never intended to 
become a mechanism to undermine or set aside the Federal Government's 
trust obligations to Indian tribes but this seems to be the result. If 
PAYGO is applicable to Trinity River fishery restoration activities 
then it must be applied based on a standard of providing appropriated 
funding for the federal trust obligations first. This is the only way 
that the United States can continue to honor and enforce its federal 
trust obligations to Indian tribes.
    The Subcommittee's attention to this testimony is appreciated. If 
you have questions or are in need of further information please contact 
me at the above address.
                                 ______
                                 
  Statement of Kole Upton, Chairman, Friant Water Users Authority and 
                  Director, Chowchilla Water District
    Madam Chairman and members of the subcommittee, it is an honor and 
privilege to appear before this Committee and testify on the San 
Joaquin River Restoration Settlement in support of the San Joaquin 
River Restoration Settlement Act, S. 27. I am Kole Upton, Chairman of 
Friant Water Users Authority, a Director of the Chowchilla Water 
District and a family farmer in Merced and Madera counties, California. 
My family for decades has relied on, and beneficially used, Central 
Valley Project water delivered from Friant Dam to grow food and fiber 
for the people of the world.
    Along with Mr. Daniel M. Dooley, a partner in Dooley Herr & 
Peltzer, LLP, I was a principal negotiator of this Settlement resolving 
the 18-year-old lawsuit known as NRDC, et al. v. Rodgers, et al. Mr. 
Dooley recently testified before the House of Representatives on this 
Settlement and his written testimony is included as part of my written 
submission. Mr. Dooley is with me today and is available to respond to 
questions regarding the Settlement.
    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 world along the southern San Joaquin Valley's East 
Side. The Friant Division also has one and one quarter million people 
embedded in the cities within its service area. The surface water from 
Friant Dam sustains the underground aquifer necessary for continued the 
viability of these cities. Friant water is also delivered directly to 
some of the cities and towns, such as Fresno, Friant, Orange Cove, 
Lindsay, Strathmore, and Terra Bella. The Friant Water Users Authority 
consists of 22 of the agencies that receive water from the Friant 
Division of the Central Valley Project.
                               background
    Why would negotiators for the Friant service area agree to a 
Settlement giving up so much of this precious water and costing society 
so much money? I will try to put the situation in the context of the 
options available to us.
    First, previous negotiations with the coalition of environmental 
plaintiffs that initiated the San Joaquin River litigation 18 years 
earlier had broken down several years ago. The primary cause from our 
perspective was ``lack of certainty.'' For our communities and farms, 
it is imperative that we have a reasonable certainty of receiving 
enough surface water to grow our crops and sustain our communities. We 
were unable to obtain that certainty in the previous negotiations.
    Therefore, the case returned to U.S. District Court Judge Lawrence 
K. Karlton. He indicated some impatience with the length of time being 
taken to resolve this case and scheduled a trial to beginning February 
14, 2006. He made several rulings and comments indicating that it was 
not a case of whether he would order water released from Friant Dam, 
but of how much water. Judge Karlton also ruled that the resulting 
fishery must resemble the historic San Joaquin River fishery. This 
meant water releases from Friant Dam would, of necessity, have to be 
sufficient to maintain a self-sustaining salmon fishery. Our experts 
felt this would result in a loss of approximately one third of our 
historical supply.
    The Judge's opinion affirmed the environmental coalition's position 
in the previous failed negotiations in which the plaintiffs were 
adamant that the solution to the case required re-establishment of a 
salmon fishery. We had suggested an extension downstream of the current 
warm water fishery that exists nearly 40 miles below Friant Dam. This 
option would have required far less water, and a fraction of the cost 
that will be required to re-structure the river for salmon restoration. 
However, the environmental coalition rejected this suggestion and the 
Judge affirmed its position.
    Thus, we prepared to go to trial and find out how bad the judgment 
would be. Senator Feinstien and Congressman Radanovich stepped in to 
this scenario and suggested we try once more to work out a compromise 
with the environmental plaintiffs. They added a condition of 
``capping'' required flows as part of the negotiations. Both sides 
agreed to the condition, and the negotiations proceeded. What you have 
before you today is the product of those efforts.
    On September 13, 2006, the Friant Water Users Authority, Natural 
Resources Defense Council and U.S. Department of the Interior 
cooperatively reached agreement on the San Joaquin River Restoration 
Settlement. Congressional action is required to implement the 
Settlement.
                        the settlement agreement
    The Settlement Agreement 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.

    Mr. Dooley thoroughly covers both of these goals and the legal 
parameters for both in his written comments that are included as an 
additional submission with my testimony. Senator Feinstein also 
requested our program for mitigation measures and it is also included 
as part of my written submission.
    I would like to concentrate on the importance of the effective 
implementation of the Water Management Goal to the San Joaquin Valley 
and its future. There are two parts of the Water Management Goal: One 
is re-circulation, and the other is the Recovered Water Account (RWA). 
In order for both of these techniques to be effective tools for 
mitigating our losses, they must have the full support and commitment 
from the appropriate federal agencies and the settling parties. This 
must be a long-term commitment that can transcend changes in 
administrations and personnel.
    It would be of great comfort to our Valley if we could get a 
realistic estimate from the appropriate agencies of the approximate 
mitigation potential of both of these water management tools. Should 
either or both of these tools prove to be ineffective, it may be 
necessary to consider more draconian options, such as land fallowing, 
in order to achieve salmon restoration without inflicting economic and 
social chaos on the communities and residents along the southern San 
Joaquin Valley's East Side.
                   mitigation measures not available
    As negotiators for the Friant interests, Mr. Dooley and I are 
frequently questioned as to why we ended up with this Settlement, and 
why other options were not considered or included. I previously covered 
the rejection of the warm water fishery option, and now will address 
the other major question--why new surface water storage was not a part 
of the Settlement.
    Why was a new dam, such as that currently being studied for a site 
known as Temperance Flat above Friant Dam and Millerton Lake, not 
considered as part of the solution?
    Would not such a dam provide significant water for mitigating the 
losses? Would not such a dam also provide more cold water for longer 
durations enhancing the potential for successful salmon restoration? 
Would not a new dam provide drought protection for subsequent year 
salmon runs? Would not a new dam provide the flood protection for the 
enormous investment society is being asked to make to re-structure the 
San Joaquin River for salmon restoration? Would not a new dam provide 
additional funding by enabling the government to fulfill existing 
contract shortages with water now lost because of the small size of 
Friant Dam and Millerton Lake?
    In my opinion, the answer to all the above questions is a 
resounding, YES! However, the environmental coalition adamantly 
rejected this option early in the process and indicated the plaintiffs 
would not continue negotiations if we demanded inclusion of a new dam.
                               conclusion
    So, I appear before you today with the only option available to us 
other than the expected U.S. District Court ruling from Judge Karlton. 
This option requires Congressional implementation. Under the terms of 
the Settlement and the subsequent agreement in Senator Feinstein's 
office, no change can be made to the Settlement unless there is 
unanimous consent by all of the parties.
    I urge the Committee to move forward on this legislation. Thank you 
for the opportunity to submit written testimony, and I would be happy 
to respond to questions.
                                 ______
                                 
                            [PRESS RELEASE]
     Hon. Grace F. Napolitano, U.S. Representative From California
 napolitano commends passage of fiscally responsible budget resolution 
                 addressing historic river restoration
    Washington, DC--Rep. Grace F. Napolitano (D-Norwalk) today voted to 
approve a 2008 budget resolution through the passage of the conference 
report on S. Con. Res. 21. The House and Senate have each now approved 
the Budget Resolution Conference Report, laying appropriate groundwork 
to begin passage of the necessary budget bills for 2008 and beyond.
    ``We have passed a budget blueprint that we can be proud of, 
providing tax cuts to middle-class families, reducing the deficit, 
following `pay as you go' principles, and balancing the budget in just 
five years. It invests in the future though innovation in energy 
independence, education for our children, and recognition of critical 
environmental concerns,'' explained Rep. Napolitano.
    Rep. Napolitano, Chair of the House Natural Resources Subcommittee 
on Water & Power, is especially pleased that the Budget Resolution 
includes language to help ensure the passage of the San Joaquin River 
Settlement Act, H.R. 24. Enacting H.R. 24 means that the San Joaquin 
River, the second longest river in California, will once again have the 
water it needs to support a viable salmon fishery.
    The language included in S.Con.Res.21 will make it easier for 
Congress to secure funds to pay for the fishery restoration and water 
management goals outlined in H.R. 24 by giving Congress more options to 
identify where the funding source would come from.
    The Democratic Budget resolution passed also includes the 
groundwork for the following:

   Balances the budget in five years.
   Strengthens our national security with a commitment to 
        military readiness, historic investments in veterans' health 
        care, better homeland security, and ending waste, fraud and 
        abuse at the Defense Department.
   Provides health care for millions of additional uninsured 
        children.
   Increases education funding by 7 percent.
   Expands renewable energy and energy efficiency to reduce 
        global warming and dependence on foreign oil.
   Protects 20 million middle-income American families this 
        year from a tax increase and makes way for a long-term fix for 
        the Alternative Minimum Tax (AMT).
   Accommodates fiscally responsible middle-class tax cuts, 
        including the child tax credit and marriage penalty relief.
                                 ______
                                 
               [Environment & Energy Daily, May 4, 2007]
                    Lucy Kafanov, E&E Daily Reporter
 water: san joaquin river restoration plan could fall apart, witnesses 
                                  warn
    California's two senators were joined yesterday by a coalition of 
environmentalists, farmers and other parties in urging Congress to pass 
legislation that would restore much of California's San Joaquin River 
and its threatened spring-run Chinook salmon.
    Speaking before a hearing in the Energy and Natural Resources 
Committee, witnesses yesterday stressed that speed is of the essence 
when it comes to enacting S. 27, which would implement a settlement 
agreement reached late last year by the Natural Resources Defense 
Council, the Friant Water Users Authority and the departments of 
Interior and Commerce that ended 18 years of litigation between farmers 
and environmental interests.
    ``If we do not pass this legislation, and the settlement is not 
enacted, then the future of the San Joaquin won't be charted by the 
people who use its water,'' said Sen. Dianne Feinstein (D-Calif.), the 
author of the bill. ``It will be decided by a judge who will demand 
that far more water be released than is envisioned by the current 
settlement agreement, with far less certainty on how it will be used.''
    In an interview outside the hearing room, NRDC's senior attorney 
Hal Candee elaborated on Feinstein's point.
    ``Any party can dissolve the entire settlement if the legislation 
is not passed,'' Candee said. ``But more seriously, if the funding is 
not made available . . . the federal government may be constrained in 
how much they can start implementing without additional funding.''
    Moreover, the state of California made its funding contingent on 
Congress passing the bill, Candee said. And the California Legislative 
Analyst's Office suggested that state lawmakers zero out all state 
funding, even though it has been committed, until Congress acts.
    ``There is a concern in California that the federal government is 
not always a reliable partner,'' Candee added. ``The clear message 
coming back from the state Legislature is that if Congress doesn't pass 
this by next year, it will be very hard to justify continued state 
funding.''
    Some initial funding already exists for the federal government to 
work with California to initiate planning and environmental review 
activities, said Bureau of Reclamation's Assistant Secretary for Water 
and Science Mark Limbaugh.
                             paygo concerns
    Feinstein and Rep. George Radanovich (R-Calif.) introduced 
identical legislation in the 109th Congress, but lawmakers ran out of 
time to move the bill. The House Natural Resources Committee already 
looked at Radanovich's H.R. 24, while the Senate Water and Power 
Subcommittee took up Feinstein's bill yesterday.
    While there has been almost no opposition to the legislation, some 
have questioned why passing the legislation is taking so long.
    According to one source involved with the agreement, the committees 
had meant to take up the bills earlier but were waiting for the 
Congressional Budget Office to release its score of the bill amid PAYGO 
concerns.
    When CBO finally released its analysis last month, it estimated the 
legislation would cost the federal government some $500 million over 
the next 19 years.
    Under House PAYGO rules, which require offsets for increases in 
direct spending or decreases in revenue, lawmakers will have to find 
$240 million over the next decade to make up for the cost of 
implementing this legislation. Specifically, this means finding offsets 
for the $217 million in direct spending authorized by S. 27 and $23 
million in lost revenues to the government over the same period of 
time.
    While Limbaugh testified in support of the legislation, Corker 
expressed some concern about sustained funding for the agreement, 
asking Limbaugh whether the Bush administration is willing to budget 
the amounts necessary to see the program through.
    ``I can't commit to additional budgets, but I can commit to 
supporting the terms of the settlement and supporting the authorization 
of the settlement through this legislation,'' Limbaugh said.
                           an 18-year battle
    The settlement was filed with the U.S. District Court for the 
Eastern District of California in September and requires federal 
legislation to become fully effective.
    The San Joaquin River historically supported large salmon 
populations, but since the late 1940s, approximately 60 miles of the 
river have dried up, a trend the settlement-legislation hopes to 
reverse. The river's water depth was artificially lowered by the Bureau 
of Reclamation's Friant Dam, built in the 1940s to stimulate the San 
Joaquin Valley's agricultural growth. But it also dried up portions of 
the San Joaquin River in western Merced and Fresno counties and 
resulted in a dramatic decline in the salmon population that once 
flourished there.
    Some 15,000 farms--which grow everything from citrus to tree fruits 
to grapes and almonds--rely on the Friant Dam water.
    Third-party groups--including the Westlands Water District in 
Fresno and the San Joaquin River Exchange Contractors Water Authority--
have expressed concern they would end up footing part of the bill for 
river channel improvements if the legislation goes through. Third 
parties are also concerned about potential liability under new 
Endangered Species Act burdens resulting from the reintroduction of the 
threatened spring-run chinook.
    The San Joaquin is the state's second longest river and helps 
irrigate about 1 million acres of Central Valley farm land. The 
Sacramento-San Joaquin River Delta provides drinking water to more than 
22 million people.
    The settlement proposes restoring 153 miles of the San Joaquin 
River from Friant Dam to south of Stockton, requiring water releases in 
amounts that will help meet the various life stage needs of spring and 
fall run Chinook salmon. This means that the dam could release some 
250,000 acre-feet of water in most dry years and more than 500,000 in 
wet years. One acre-foot is equivalent to 326,000 gallons, or roughly 
enough to meet the annual drinking water needs of five people.
    Fishing advocates and environmentalists sued Reclamation in 1988 
when water users' contracts came up for renewal. The suit alleged that 
Friant contracts violated California Fish and Game code, NEPA and ESA 
and sought to divert water from the Friant water users to restore the 
river for salmon runs.
                                 ______
                                 
                                               Sierra Club,
                                  San Francisco, CA, July 20, 2007.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Senator Bingaman: We are writing to express our strong support 
for S. 27, the ``San Joaquin River Restoration Settlement Act,'' and to 
urge you to move this bill as quickly as possible to a full Committee 
vote and to the Senate floor for final consideration. Enactment of S. 
27 will initiate one of the largest environment restoration projects 
ever undertaken in the West.
    This consensus legislation has widespread and bipartisan support 
from federal agencies, state agencies, farmers, conservation groups and 
numerous urban and agricultural water districts. The legislation is 
needed to authorize and approve a landmark Settlement agreement between 
the parties to NRDC v. Rodgers, an eighteen year case concerning the 
restoration of flows and native salmon populations to the San Joaquin 
River, the second longest river in California.
    The settlement was approved by the federal court in October 2006 
and the parties have been seeking Congressional authorization since 
last fall when the legislation was first introduced by Senators 
Feinstein and Boxer and Representatives Radanovich, Pombo, Miller, 
Napolitano, Costa and Cardiza. We are very concerned that lack of 
congressional action on the measure this summer could significantly 
delay implementation of the Settlement and the restoration of flows and 
fish in the River, as well as jeopardize over $100 million in State 
cost-sharing that has been pledged pending congressional approval of 
the Settlement. Further, failure to approve the legislation could 
jeopardize the protections currently provided for third parties and 
downstream interests that are not fully incorporated into the 
Settlement itself but were negotiated by the third parties under the 
auspices of Senator Feinstein, Representative Radanovich and others for 
inclusion within the authorizing legislation. None of these 
requirements will remain in place if S. 27 is not enacted into law.
    Many of the Settling Parties and affected third parties were among 
the witnesses invited to testify before the Subcommittee on Water and 
Power of the Senate Committee on Energy and Natural Resources on May 3, 
2007. That hearing reconfirmed the strong, widespread and bipartisan 
support for the legislation and included testimony by the State of 
California reiterating its commitment of considerably more than $100 
million of State funds to help with Settlement implementation once 
Congress approves S. 27.
    For all of these reasons, we urge you to support and quickly 
approve S. 27. Thank you.
            Sincerely,
                                              Greg Haegele,
                                             Conservation Director.

                                    

      
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