Michael L. Connor, Deputy Secretary
U.S. Department of the Interior
Committee on Energy and Natural Resources
United States Senate
HR 2898 – Western Water and American Food Security Act of 2015
October 8, 2015
Chairman Murkowski, Ranking Member Cantwell and Members of the Committee, I am Mike Connor, Deputy Secretary of the Department of the Interior (Department). Thank you for the opportunity to provide the views of the Department on HR 2898, the Western Water and American Food Security Act of 2015, and describe actions being taken to help water users in California through this fourth year of drought.
While the Department and its bureaus recognize the severity of drought in California and the West, for the reasons summarized below, the Department strongly opposes HR 2898. As the Committee is aware, the Department and the Bureau of Reclamation (Reclamation), working in concert with fisheries agencies and the State of California, have taken extraordinary measures in recent years to adapt to dry hydrology and provide as much water as possible amidst severe drought. Innovative arrangements allowing for transfers and exchanges of finite water supplies have been developed in concert with water contractors; Reclamation and the state have secured agreements with the State Water Resources Control Board allowing for relaxation of flow and water quality requirements, conserving hundreds of thousands of acre-feet of water that would otherwise have been unrecoverable; the operations staff for the state and federal water projects are interacting daily and sometimes hourly to monitor real-time conditions to determine any necessary adjustments to Delta pumping needed to protect the environment while optimizing water supply; and tens of millions of dollars have been awarded by Reclamation and other agencies for water conservation projects across the state, continuing through this summer.
Nevertheless, we understand the desire of this Committee for legislative action to address the severity of California’s drought. This year, the Administration has conveyed its concerns about HR 2898 through a July 14, 2015, Statement of Administration Policy (SAP), as well as a July 7, 2015, letter to the leadership of the House Natural Resources Committee. Since the time those statements were transmitted, the House of Representatives passed HR 2898 with amendments on July 16, 2015. While some changes were made to the bill during debate on the House Floor, the Department continues to be of the strongly held view that, rather than increasing water supplies, HR 2898 dictates operational decisions, prescribes infeasible outcomes, and creates new conflicts among existing laws that will hinder, rather than help, an effective drought response. While HR 2898 holds out the hope of swift and easy relief to drought-weary families, it is a false hope. We believe HR 2898 will slow decision-making, generate significant new litigation, and limit the real-time operational flexibility that has proven critical to maximizing water delivery during the current drought. H.R. 2898 also represents an unprecedented congressional amendment to existing biological opinions that have been upheld as scientifically and legally sound. The Department does not support such an approach.
To provide additional detail on those concerns, my statement will cover the major provisions in each of the bill’s first six titles that bear on specific project operations in California and the West. Titles VII through XI are a compilation of separate West-wide legislative proposals on which the Department has previously testified in 2014 or 2015. For that reason, the latter portion of my statement will summarize the Department’s previously expressed views on the proposals in those five titles.
Beginning with Title I, I draw your attention to language in Sections 102(a)(1) and 103(b)(2)(A) that would require the selective use of data sets and survey methods aimed at creating specific outcomes for exports from the Sacramento-San Joaquin Bay Delta (Delta). The date ranges and monitoring locations specified in those subsections do not represent the best available science and prescribe the use of information that is skewed to de-emphasize threats to listed species like Delta Smelt, and authorize more permissive export pumping regimes without consideration of more comprehensive data or the language’s potential effects on listed species. In Section 103(e)(2), the Secretary of the Interior is instructed to take steps to manage reverse flows in the Old and Middle Rivers to a specific flow rate. But since the State of California operates its own export facilities, Federal law mandating specific federal operations, by itself, cannot achieve the results the bill intends. It will be impossible to meet such a rate without close coordination and cooperation with the state. Recognition of the division between state and federal operations and the magnitude of collaboration on both sides is a significant gap in this legislation.
For these provisions as well as all other provisions identified as problematic in my statement today, the Department would be glad to work with the Committee to propose alternate language.
The Department supports the discretionary approach to authorities found in Section 203 of HR 2898 for the benefit of fish and wildlife. Provisions intended to build upon the agencies’ current actions to improve data gathering, monitoring, and scientific methodologies can greatly benefit operations with respect to water supply and species protection. In particular, the Department strongly supports well-designed collaborative scientific research into predation. The language at Section 203(d) of HR 2898 (and Section 202(a)(3)(B)(i) of S. 1894) authorizing federal participation in a 100 percent locally-funded pilot program to protect native anadromous fish in the Stanislaus river, Delta and other tributaries, if based upon well shaped research strategies and developed through a collaborative scientific and technically disciplined process (akin to our work in the Collaborative Adaptive Management Team), could help create a strengthened predation research program that was able to provide near- and long-term benefits for the environment and for state and federal water users across California. We would welcome a discussion with Members, staff, and the water districts on how to shape the proposal to achieve our desired outcome.
Moving ahead to Title III, several provisions that seek to dictate operations of the state and federal water export facilities in the Delta either contain problematic requirements or ignore the legal division between the projects. Section 302(a) dictates that the Secretary “shall provide the maximum quantity of water supplies practicable to all individuals or districts who receive Central Valley Project (CVP) water” based on a Sacramento Valley Water Year Index of 6.5 or lower (Dry or Critically Dry).
Putting aside the potential legal uncertainties associated with writing “maximum quantity of water supplies practicable” into law, operational history shows that this trigger – an index of 6.5 or lower – occurred in nearly 75% of the 109 years from 1906 to 2014. To apply a “maximum quantity” standard to operations and water deliveries without regard to the many other factors that influence final deliveries is to guarantee a misalignment between the mandates of the bill and the realities of CVP operations.
In addition to dictating operational decisions, HR 2898 imposes a new legal standard which could actually limit water supplies by creating confusing conflicts with existing laws, potentially slowing down decision-making, generating significant litigation, and limiting real-time operational flexibility. Specifically, the newly defined term “negative impact on the long-term survival” is used throughout the bill—often in combination with the undefined terms “imminent” and “significant”—in provisions that would require operators to maintain certain operations unless doing so would cause such an impact. This new standard could conflict with the Endangered Species Act’s jeopardy standard, thereby creating two different standards for operations of the Central Valley Project and State Water Project. These potentially conflicting standards would invite litigation.
Similarly, Section 302(b)(2)(A) creates unrealistic expectations by mandating a water transfer permit deadline of 30 days for completion of “all requirements under the National Environmental Policy Act of 1969 and the Endangered Species Act of 1973 necessary to make final permit decisions on the request.” Reclamation recognizes the need to act efficiently and expeditiously and is frequently able to meet this turnaround time; however, all of the agencies involved in this process are also subject to the California Water Code and associated water transfer rules, which can extend the time needed to approve transfers. Additionally, if water transfer requests are made too early in the year, before operators can determine whether conveyance capacity is available, a 30-day decision deadline can be unworkable. Also of note, Section 302(b)(4) calls on the Secretary to “allow and facilitate” transfers from the Harvey O. Banks Pumping Plant, a State of California-owned and -operated facility. This Section provides yet another instance in which this bill misses the distinction between state and federal operations and under-appreciates the collaborative efforts necessary to address the drought. The Department has several other concerns about Title III which we would be glad to detail further for the Committee in writing.
Title IV of HR 2898 also poses several concerns for the Department. Of the five studies referenced in this Section, one is now complete and was submitted to Congress in July 2015 (Shasta Lake Water Resources Investigation); two are dependent upon local cost-share partners for completion (North of Delta Offstream Storage/Sites Reservoir, and Los Vaqueros Reservoir); one is undergoing final review and verification of the scientific assumptions associated with its conclusions relative to fish and wildlife benefits (Upper San Joaquin/Temperance Flat); and the final study, referenced at Section 401(5), San Luis Low Point Improvement Project (SLLPIP), requires further analysis and resolution of recently identified safety concerns at B.F. Sisk Dam. Requiring completion of the studies on the proposed dates could compromise Reclamation’s ability to provide sufficient basis for a decision on construction, and could prohibit adequate input from cost-share partners.
In Section 502 of HR 2898, “Area of Origin Protections,” the Secretary is directed, in operating the CVP, to “adhere to” the State’s laws governing water rights priorities and to honor water rights senior to the rights held by the U.S for the CVP. The Secretary does operate the CVP in compliance with state water rights law when Reclamation diverts water for CVP purposes. However, courts have concluded that deliveries of CVP water to Reclamation contractors are governed by Reclamation contracts. That is to say, Reclamation contractors’ rights to receive deliveries of CVP water are based on their contracts with the United States. There is no rationale identified in the bill for providing a greater water supply benefit or certainty to these contractors – a benefit, which, by necessity, entails a possible detriment to other CVP contractors who derive some or all of their water supply from these rivers. Similarly, the requirements in Section 504 to provide “not less than 100 percent of their contract water quantities” in Wet, Above Normal and Below Normal water year types, and not less than 50 percent even in a Dry year, pose serious challenges to the ability of the CVP to meet the multiple purposes inherent in the project’s authorization. The “No Effect on Allocations” language in Section 504(c) will likewise be almost impossible to implement without significant redirected impacts elsewhere in the CVP or elsewhere in California.
Title VI of HR 2898 amends the Central Valley Project Improvement Act (CVPIA) with new planning requirements on the expenditure of monies by the CVP Restoration Fund. Section 602(a) requires that “For each fiscal year, the Secretary shall submit to Congress a plan for the expenditure of all funds deposited into the Restoration fund in the preceding fiscal year.” While this provision appears straightforward, there are already extensive annual reporting requirements associated with the CVP Restoration Fund that cover both planned expenditures and accomplishments. These reports are posted on Reclamation’s web site, comprise several hundred pages, and provide extensive transparency on the program’s administration. Moreover, the bill’s requirement that a plan be prepared to document expenditures from a preceding fiscal year’s deposits ignores the fact that funds are almost always obligated for expenditure in the same year the deposits occur. There is no time lag, and so submitting such a new “plan” makes no sense because the expenditures have already occurred. That being said, we are constantly looking to improve the effectiveness of our expenditures within this important program. We facilitate these improvements through a flexible adaptive management program that responds to the latest scientific, economic, and environmental conditions. We would be happy to work with this committee as we make such improvements, and keep you informed as we continue to target increased effectiveness of CVPIA expenditures to achieve the program’s challenging goals.
Some of the operational problems identified in Title III continue in Title VI, with requirements at Section 606 directing that the Secretary transfer the New Melones Unit to “interested local water and power providers”. The Department has serious concerns about this language, not the least of which is the fact that the New Melones Unit is a significant feature of the CVP, and the CVP is an integrated project providing benefits to several-hundred-thousand acres of California. New Melones Reservoir is a major federal storage facility on the Stanislaus River, a large tributary of the San Joaquin River and whose flows directly affect the Delta. New Melones Reservoir has prevented tens of millions of dollars in flood damage, provides over two-million acre-feet of project storage, and provides critical water to meet the water quality requirements applicable to the CVP’s permits under D-1641. In the absence of this resource, Reclamation would not be able to meet Delta water quality standards under D 1641, as measured at Vernalis, without purchasing water from other operators within the San Joaquin River watershed.
The CVP, including the New Melones Unit, has not been designated as complete and the construction costs associated with the CVP have not been fully repaid. While Reclamation has a long record of support for title transfer legislation when agreement has been negotiated among all affected parties, HR 2898 does not include specific language at Section 606(b) addressing price, or a process to determine the price to be paid, in title transfer negotiations concerning both the named facilities as well as appurtenant water rights. The bill should assure that there be no financial or other detriment to the United States or CVP contractors who rely on benefits provided to the rest of the project by the New Melones Unit.
Section 608 of the bill prohibits any releases of water from Lewiston Dam in excess of the volumes required by the Record of Decision (ROD) for the Trinity River Mainstem Fishery Restoration Final Environmental Impact Statement/Environmental Impact Report (EIS/EIR), dated December 2000. This provision specifically targets supplemental fall flows released by Reclamation from the Trinity River Division to the lower Klamath River. The Trinity River is the largest tributary to the Klamath River, whose confluence lies approximately 40 miles upstream from where the Klamath River flows into the Pacific Ocean.
Reclamation makes these fall flow augmentation releases separate from ROD flows to protect anadromous fish returning to the lower Klamath River. Flow augmentation releases prevent recurring outbreaks of Ich (Ichthyophthirius multifiliis), the fish disease thought primarily responsible for a historic 2002 die-off of Chinook salmon and ESA-listed coho salmon that return to spawn in both the Trinity and Klamath Rivers. The Department makes these fall flow augmentation releases consistent with its statutory authorities and with Reclamation’s obligation to protect tribal trust resources of the Hoopa and Yurok Tribes, who rely on Chinook salmon migrating through the lower Klamath River for subsistence, ceremonial, and other purposes.
The rest of HR 2898 consists of Titles taken from other legislation pending in the 114th and 113th Congresses. The Department has testified on the stand-alone bill version of each of these titles, and the remainder of my statement will summarize those positions.
Title VII, with some modifications, largely consists of language from S. 1533 (114th), the Water Supply Permitting Coordination Act. Reclamation testified on S. 1533 on June 18, 2015 before the Water and Power Subcommittee of this Committee. The Bureau expressed concern that the bill included lands lying beyond the 17 western Reclamation states, and we appreciate the clarification to this now found at Section 702(3) of HR 2898. However, the Department’s other concerns about S. 1533, primarily the fact that there is already ample basis for review of projects and coordination among federal agencies involved in water supply planning, remain regarding the language in this current bill.
Title VIII is comprised of the provisions of HR 2097 (114th) and HR 5412 (113th) -- for which the Department provided a statement for the record to the House Natural Resources Committee’s Subcommittee on Water and Power on September 10, 2014 when the bill was in draft form. In the Department’s view, this legislation would restrict the time available to establish the merits of a surface water storage project and to consider a project’s potential environmental effects. Constraining or circumventing project environmental reviews and permits impedes the opportunity to consider alternatives with potential impacts on communities and the environment which may be less adverse. Such constraints could make favorable recommendations for project construction less likely and increase the potential for delay as a result of litigation, which, I would note, would have the opposite effect of the provisions’ intentions. The Department does not support Title VIII of HR 2898.
Title IX of HR 2898 is an updated version of HR 3981 (113th), the Accelerated Revenue, Repayment and Surface Water Storage Enhancement Act on which Reclamation provided a statement for the record to the House Water and Power Subcommittee on February 5, 2014. The bill contains provisions to enable the conversion of any water service contract to a repayment contract, with allowance for pre-payment. While Reclamation’s February 2014 statement identified several programmatic concerns about the bill, it is also noteworthy that current CVP water service contracts already contain language for their eventual conversion to repayment contracts at such time that it is determined that the remaining construction costs of the CVP can be repaid within a specified repayment term and without adversely affecting the operations of the CVP. Additionally, the bill proposes a one-year timeframe to convert existing contracts, which may not be reasonable given the realities of CVP operations and repayment status.
Title X of HR 2898 contains the language of HR 2749 (114th), the Dams Accountability, Maintenance and Safety Act, and closely corresponds with Section 205 of the Senate version of the 2016 Energy and Water Development Appropriations bill (HR 2028) reported on May 21, 2015. Reclamation testified on HR 2749 before the House Water and Power Subcommittee on June 25, 2015. The Department sees merit in this proposal as a potential means to efficiently combine projects and maximize the benefit of existing facilities by amending the Reclamation Safety of Dams Act. In order to apply such provisions, Reclamation and the Department would evaluate the authorization of additional project benefits language from the perspective of preserving the effectiveness of the dam safety program, while also upholding the ‘beneficiaries pay’ principle that underlies Reclamation law. Any authorization should ensure that the beneficiaries of the non-safety-related project construction pay their full share of the costs as a condition of construction; i.e., there should be no repayment contract for that portion of the project.
If HR 2749, HR 2028, or HR 2898’s Safety of Dams Act amendments were to be enacted, it would be important to assure that adequate appropriations authorization levels (i.e. “ceiling”) specific to the additional benefits were available for the particular authorized project. Reclamation would need to certify this authority on a case-by-case basis in order to apply this new authority consistent with Congressional intent.
Finally, title XI of HR 2898 contains language from S. 982 (114th), the Water Rights Protection Act. As stated in testimony provided on June 18, 2015, to the Water and Power Subcommittee of this Committee, the Water Rights Protection Act is overly broad, drafted in ambiguous terms, and likely to have numerous unintended consequences that would have adverse effects on existing law, tribal water rights, and voluntary agreements. These provisions would interfere in multiple ways with legitimate federal water management activities and would likely generate years of needless litigation. The Department opposes Title XI and S. 982.
In closing, I would like to echo the Department’s statement to this Committee on June 2 of this year: the Department is acutely aware of the drought-related challenges and worries confronting families, farmers, tribes, businesses, cities, rural communities and the environment throughout the west. Simply put, we understand the implications for western communities and the need to secure long-term water reliability and resiliency in the face of drought and the related impacts of climate change.
Throughout the debate surrounding these drought bills, there has been constant speculation that legislation dictating how to operate the water export facilities, or a strong El Nino event, will decisively end California’s drought. For the reasons I’ve described above, we strongly disagree with the idea that this bill can salvage more water than the operators on the ground are wringing from the system every day. And as for El Nino, the odds of a one-year end to a four-year drought are also slim. In the areas most critical to California’s water supply (the Shasta-Trinity mountains, the Sierra Nevadas, and the Colorado River basin), El Nino does not always result in large amounts of snow and rain. Even if it results in large amounts of precipitation in those key areas, it’s highly unlikely to make up for the impacts of the current drought, which have left California’s water supplies at historically low levels.
While El Nino will not be a standalone solution to our long-term water shortages, over the past few years, aggressive drought response measures at the federal, state, and local levels have helped to mitigate the impacts of drought. Working with the State Water Resources Control Board, operational changes by Reclamation have conserved nearly 800,000 acre-feet as of the end of August , substantially more than the 300,000 acre-feet I reported as of late May. While those and many other measures have not fully alleviated the drought’s impacts, we’ve proven that we have the capacity to improve overall water management building on the work of creative local partners. By sustaining these activities, I believe we can build long-term drought resiliency, even accounting for what El Nino may or may not yield in this and future years.
The Department will continue to take a multi-faceted approach and to marshal every resource at its disposal to assist western communities impacted by drought. We disagree with the language of HR 2898, but we stand ready to work with this Committee, the House, and the Senate to find common ground on legislation that can complement the Administration’s efforts to assist communities impacted by drought.
This concludes my written statement. I am pleased to answer questions at the appropriate time.