I 

111TH CONGRESS 

1ST SESSION H. R. 3999 

To direct the Commissioner of the Bureau of Reclamation to initiate consultations under the Endangered Species Act of 1973 on the Central Valley 

Project and the California State Water Project, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 3, 2009 

Mr. CARDOZA (for himself, Mr. COSTA, and Mr. RADANOVICH) introduced the 

following bill; which was referred to the Committee on Natural Resources 

A BILL 

To direct the Commissioner of the Bureau of Reclamation 

to initiate consultations under the Endangered Species 

Act of 1973 on the Central Valley Project and the California State Water Project, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. RECONSULTATION ON CENTRAL VALLEY 

4 PROJECT AND THE CALIFORNIA STATE 

5 WATER PROJECT. 

6 (a) FINDINGS AND PURPOSE.— 

7 (1) FINDINGS.—The Congress finds and de8 clares the following: 


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1 (A) The United States owns and operates 

2 the California Central Valley Project (CVP), 

3 originally federally authorized under the Emer4 gency Relief Appropriation Act of 1935 (49 

5 Stat. 115), and reauthorized multiple times 

6 since— 

7 (i) to provide for improved navigation, 

8 flow regulation and flood control, storage 

9 and delivery of water, hydropower produc10 tion, construction of distribution systems 

11 to deliver water for the reclamation of arid 

12 and semiarid lands; 

13 (ii) to protect, restore, and enhance 

14 fish, wildlife and associated habitats; and 

15 (iii) to provide other beneficial uses. 

16 (B) The State of California owns and oper17 ates the California State Water Project (SWP), 

18 the Nation’s largest State-built water and 

19 power development and conveyance system, 

20 which was authorized in 1960 by a State ref21 erendum known as the Burns-Porter Act to 

22 provide for water storage and delivery, hydro23 power generation, flood control, recreation, 

24 water quality, fish and wildlife enhancement, 

25 and other beneficial uses. 


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1 (C) California is the world’s 8th largest 

2 economy and accounts for 13 percent of the 

3 Nation’s economic output. Water conveyed from 

4 northern to southern California through the 

5 Bay Delta supports 25 percent of the State’s 

6 economy, is a source of drinking water for over 

7 22 million people, irrigates nearly 50 percent of 

8 the Nation’s fruits and vegetables, and supplies 

9 numerous wildlife management and ecosystem 

10 restoration projects. 

11 (D) Several species listed under the En12 dangered Species Act of 1973 (16 U.S.C. 1531 

13 et seq.) and potentially affected by the contin14 ued operation of the CVP and SWP are experi15 encing historic or near-historic-recorded low 

16 population levels. 

17 (E) A number of scientific investigations 

18 have been initiated by State, Federal, and local 

19 agencies, academia, and private interests to 

20 identify the causes of these declines and re21 corded low population levels. The vast majority 

22 of these studies have concluded that these spe23 cies are being impacted by a multitude of envi24 ronmental factors including predation, competi25 tion from invasive species, entrainment by pubVerDate Nov 24 2008 03:39 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3999.IH H3999

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1 lic and private water diversions, legal and illegal 

2 harvest, contamination emanating from urban 

3 and industrial wastewater discharges, agricul4 tural and urban runoff, ocean conditions, and 

5 other environmental consequences associated 

6 with climate change. 

7 (F) Operations of the CVP and SWP are 

8 coordinated to a large degree by the Coordi9 nated Operations Agreement between the 

10 United States and State of California and im11 plemented by Congress in 1986 (Public Law 

12 99–546). 

13 (G) The existing and proposed operations 

14 of the CVP and SWP are subject to consulta15 tion with the Unites States Fish & Wildlife 

16 Service (FWS) and National Marine Fisheries 

17 Service (NMFS) under section 7(a) of the En18 dangered Species Act of 1973 (16 U.S.C. 

19 1536(a)). The current biological opinions were 

20 prepared separately, under direction by the 

21 United States District Court for the Eastern 

22 District of California, and issued December 

23 2008 and June 2009, respectively. 

24 (H) The Central Valley Project Improve25 ment Act of 1992 (Public Law 102–575) re-alVerDate Nov 24 2008 03:39 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3999.IH H3999

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1 located on average over 1.6 million acre-feet of 

2 water annually away from water users for envi3 ronmental restoration, disproportionately im4 pacting rural, agricultural communities in the 

5 San Joaquin Valley. 

6 (I) The 2008 FWS and 2009 NMFS bio7 logical opinions are projected to result in an ad8 ditional 1,200,000 acre-feet of reductions annu9 ally, combined, on average. 

10 (J) The State of California has been hard 

11 hit by three critically dry years. Coupled with 

12 an economic downturn, severely restricted water 

13 supply deliveries from the CVP and SWP to 

14 water service users has resulted in San Joaquin 

15 Valley cities and farm communities suffering 

16 unemployment numbers upwards of 30 to 40 

17 percent, with tens of thousands of jobs lost, 

18 hundreds of thousands of acres fallowed, and 

19 other environmental consequences. 

20 (K) The current 2008 FWS and 2009 

21 NMFS biological opinions consider complex ac22 tions taking place in highly altered environ23 ments but do not analyze the relative impact of 

24 any other environmental factors affecting the 

25 survival or recovery of the listed species, though 


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1 they do acknowledge that conditions and activi2 ties not within the control of the CVP and SWP 

3 are likely to place substantial stress upon them. 

4 Further, as the 2008 FWS and 2009 NMFS 

5 biological opinions were developed separate of 

6 one another, there exist potential conflicts be7 tween them that may adversely impact one list8 ed species in an attempt to protect another. 

9 (2) PURPOSE.—The purpose of this section is 

10 to resolve these potential conflicts and to address the 

11 full range of environmental factors that are likely 

12 jeopardizing the continued existence or recovery of 

13 the listed species or resulting in the destruction or 

14 adverse modification of their critical habitat. 

15 (b) RECONSULTATION REQUIRED.— 

16 (1) IN GENERAL.—Within 90 days after the 

17 date of enactment of this Act, the Commissioner of 

18 the Bureau of Reclamation shall initiate consultation 

19 with the Secretary of the Interior and the Secretary 

20 of Commerce regarding the existing and proposed 

21 operations of the Central Valley Project and the 

22 California State Water Project, including as de23 scribed in the Operations Criteria and Plan for the 

24 Central Valley Project, California, under section 7(a) 


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1 of the Endangered Species Act of 1973 (16 U.S.C. 

2 1536(a)). 

3 (2) COVERED SPECIES.—The consultation shall 

4 include all species listed under section 4(c) of such 

5 Act (16 U.S.C. 1533(c)) and all candidate species 

6 (as that term is used in that Act) that are or will 

7 be affected by such proposed operations. 

8 (3) ANALYSIS OF FACTORS.—In conducting the 

9 consultation required by this subsection, the Sec10 retary of the Interior and the Secretary of Com11 merce shall each— 

12 (A) identify, analyze, and describe all fac13 tors affecting the survival and recovery of the 

14 species referred to in paragraph (2), other than 

15 operations of the Central Valley Project and the 

16 California State Water Project, including— 

17 (i) municipal wastewater discharges; 

18 (ii) urban and agricultural runoff; 

19 (iii) industrial discharges; 

20 (iv) major power plant water diver21 sions and discharges; 

22 (v) private water diversions within the 

23 Sacramento-San Joaquin River Delta; and 

24 (vi) predation by invasive species, in25 cluding striped bass; 


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1 (B) identify, analyze, and describe the ef2 fect of invasive species and wastewater dis3 charges on food availability on the survival and 

4 recovery of the species referred to in paragraph 

5 (2), including changes in the composition or 

6 availability of prey; changes in climate; and al7 terations in the species’ critical habitat; 

8 (C) identify, analyze, and to the greatest 

9 extent practicable quantify the relative effect of 

10 each factor affecting the survival and recovery 

11 of the subject species; 

12 (D) rank each such factor in the order of 

13 its relative effect on the likelihood of the sur14 vival and recovery of the species referred to in 

15 paragraph (2); and 

16 (E) identify the specific, additional incre17 mental effect of existing and proposed discre18 tionary operations of the Central Valley Project 

19 and California State Water Project on the sur20 vival and recovery of the species referred to in 

21 paragraph (2), in relation to all other factors 

22 affecting such survival and recovery. 

23 (c) BIOLOGICAL OPINION.— 

24 (1) IN GENERAL.—The Secretary of the Inte25 rior and the Secretary of Commerce shall issue a 


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1 statement under section 7(b)(3) of the Endangered 

2 Species Act of 1973 (16 U.S.C. 1536(b)(3)) with re3 spect to the existing and proposed operations that 

4 are the subject of the consultation under subsection 

5 (b) of this section. 

6 (2) REASONABLE AND PRUDENT ALTER7 NATIVES.—If the Secretary of the Interior and the 

8 Secretary of Commerce include in the statement rea9 sonable and prudent alternatives to discretionary 

10 project operations, they shall— 

11 (A) specify and specifically describe in the 

12 statement the increased species abundance they 

13 estimate will result from such alternatives; and 

14 (B) limit the measures required by the rea15 sonable and prudent alternative to no more 

16 than the proportionate effects of those discre17 tionary project operations in relation to the fac18 tors referred to in subsection (b)(3)(A) affect19 ing the species referred to in subsection (b)(2). 

20 (3) OTHER ACTIONS OR MEASURES.—The Sec21 retary of the Interior and the Secretary of Com22 merce shall identify and recommend in the state23 ment actions or measures that are not within the ju24 risdiction of the Bureau of Reclamation, but are 

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1 section (b)(3)(A) that are jeopardizing the species 

2 referred to in subsection (b)(2) or adversely modi3 fying their critical habitat. 

4 (d) DEADLINE FOR COMPLETION.— 

5 (1) IN GENERAL.—The Commissioner and each 

6 such Secretary shall conclude consultation under 

7 subsection (b) and issue a statement under sub8 section (c) by the end of the 90-day period on which 

9 the consultation under subsection (b) is initiated by 

10 the Commissioner. 

11 (2) NO EXTENSION.—Notwithstanding any 

12 other law, including paragraphs (1) and (2) of sec13 tion 7(b) of the Endangered Species Act of 1973 (16 

14 U.S.C. 1536(b)), the period under paragraph (1) 

15 may not be extended. 

16 (e) CITIZEN SUITS.—For purposes of section 11(g) 

17 of the of the Endangered Species Act of 1973 (16 U.S.C. 

18 1540(g)), this section is deemed to be a provision of that 

19 Act. 

20 (f) OTHER CONSULTATION AND BIOLOGICAL OPIN21 ION NOT EFFECTIVE.—Any consultation conducted or 

22 statement issued before the date of enactment of this Act 

23 under section 7 of the Endangered Species Act of 1973 

24 (16 U.S.C. 1536) with respect to the existing and pro25 posed operations referred to in subsection (b)(1) shall have 


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1 no force or effect after the date of the issuance of the 

2 statement under this section. 

Æ 


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