THIS JUST IN … Senator Feinstein supports drought language in Water Resources Development Act

Bill includes both long-term, short-term provisions; $558 million for storage, desalination, recycling, fish, wildlife protection programs; and Fully complies with all state, federal law including Endangered Species Act, biological opinions

Dianne_Feinstein,_official_Senate_photo_2Senator Dianne Feinstein (D-Calif.) today announced her support for drought language in the Water Resources Development Act, a bill that authorizes water projects across the country. Broadly based on Feinstein’s February 2016 legislation, the drought language is the result of three years of work, more than 50 drafts and vigorous consultation with federal agencies and the White House to ensure the bill complies with environmental laws including the Endangered Species Act and biological opinions.

Senator Feinstein released the following statement:

The question I ask myself about this bill is will it help California? Will the $558 million in long-term authorizations help California develop a new water infrastructure? Will the short-term operational improvements help us hold more water in a way that does not negatively affect fish or the environment? I believe the answer is yes.

This bill isn’t perfect but I do believe it will help California and it has bipartisan support including Republicans and Democrats in the House, and that’s why I’m supporting it.

After three years and dozens of versions of legislation, I think this is the best we can do. If we don’t move now, we run the real risk of legislation that opens up the Endangered Species Act in the future, when Congress will again be under Republican control, this time backed by a Trump administration.

As a result of our work with experts from federal and state agencies, we have included strong savings clauses and environmental protections to ensure this bill is entirely within the bounds of both the Endangered Species Act and relevant biological opinions. The bill also includes $43 million for important programs to restore salmon and smelt and to benefit refuges. But those environmental protections certainly won’t be included if a new bill is drafted next year by the Republican majority.

Action is long overdue. California is entering its sixth year of drought. Experts state it will take four or more years to recover. We are seeing water wells in the thousands running dry. At the same time, smelt populations have plummeted to historic lows and salmon populations are struggling.

I know that we absolutely can protect California’s environment and wildlife while improving how we move and store water in California. After all, the state is home to 40 million people, but we have essentially the same water system we had five decades ago when the population was 16 million people.

To address the demands of population growth and climate change, we must make sure we can store water from wet years for use in dry years and stretch our existing supplies through conservation, recycling and desalination.

And this bill does that with both long-term and short-term provisions as well as strong environmental protections.

The long-term provisions are centered around $558 million that will help supplement state and local funding to build the 137 projects identified by the Feinstein drought bill introduced in February (S. 2533). Those projects—desalination, recycling and reuse—could produce upwards of 1.4 million acre feet of water, enough for 2.8 million households. $335 million is included for storage, funds that will go a long way toward preparing for future dry years, and $43 million is included to benefit salmon, smelt and wildlife refuges. (Details on fish and wildlife provisions and long-term infrastructure below.)

The short-term, five-year operational provisions will ensure the system is operated using science, not intuition. They will help operate the water system more efficiently, pumping water when fish are not nearby and reducing pumping when they are close.

The vast majority of the bill has been public for months or years as part of previous versions and has been the subject of public hearings in May 2016 and October 2015. While there have been some changes to achieve broad agreement by all parties, the bill is largely similar to the bill I introduced in February.

We have also worked with a wide range of federal and state agencies to ensure this bill can be implemented in a way that remains within the bounds of the Endangered Species Act and biological opinions.

We must continue to press forward as the rainy season begins so we can begin to relieve serious water shortages in significant parts of the state.”

Summary of legislation

A summary of the bill follows:

  • Overview: California’s water infrastructure is largely unchanged since the 1960s, when California was home to 16 million people. Our state—with a population of 40 million and the 6th largest economy in the world—relies on water infrastructure that is stretched to the breaking point and desperately needs to be improved and changed.
  • Environmental protections: We worked with experts from federal and state agencies to draft an environmental protection mandate and a strong, comprehensive savings clause that makes clear the legislation must be implemented consistent with the Endangered Species Act and relevant biological opinions.
  • Long-term provisions: This bill includes $558 million in long-term funding authorizations. Paired with state and local funding, many of the 137 projects identified by the Feinstein drought bill introduced in February (S. 2533) will be within reach. Those projects could produce upwards of 1.4 million acre feet of water, enough for 2.8 million households. (See additional details below.)
  • Short-term provisions: The bill also includes short-term provisions to ensure the system is operated using science, not intuition. This will help operate the water system more efficiently, pumping water when fish are not nearby and reducing pumping when they are close.
  • Duration: The short-term operations will last for five years. Long-term construction projects still underway at the end of five years will continue to receive federal funding. One provision that expires after 10 years provides additional opportunities to environmental groups and water districts to consult on any future biological opinions.
  • Federal and State input: The bill was reviewed extensively by federal and state agencies to ensure it is consistent with environmental laws, including the Endangered Species Act and biological opinions.

Environmental protections

  • Most importantly, the bill includes a strong, comprehensive savings clause. This clause is included at the end of this press release.
  • Drafted by Department of the Interior and the Commerce Department, the savings clause prohibits any federal agency from taking any action that would violate any environmental laws, including the Endangered Species Act and biological opinions.
  • The savings clause is stronger than the clause included in Feinstein’s February 2016 drought bill, containing additional language to make clear nothing in the bill overrides or amends any obligations to manage coastal fisheries off the coasts of California, Oregon and Washington.
  • Includes an environmental protection mandate drafted by NOAA Fisheries to ensure full consistency with the Endangered Species Act.
  • Includes language at the request of the administration that protects agencies’ abilities to develop successor biological opinions.
  • The long-term authorizations include $43 million to benefit endangered fish and wildlife, including:
  • $15 million for the protection and restoration of salmon: These funds will be used to increase spawning habitat on the Sacramento River and purchase water to increase flows to reducing predation at Clifton Court Forebay. These funds can also be used to fix the broken cold water valve at Shasta to prevent 98 percent mortality rates from happening again. These devices must be fixed and functioning so that we can avoid what we saw in 2015, when 98 percent of the salmon year class died, and in 2014 when 95 percent of the salmon year class died.
  • $15 million for fish passage projects: Reauthorizes at $15 million the Fisheries Restoration and Irrigation Mitigation Act (which expired in 2015), a voluntary, cost-sharing program the U.S. Fish and Wildlife Service uses to pay for installing fish screens and diversions that protect migrating salmon.
  • $3 million for a Delta Smelt Distribution Study: The better the fish is understood, the better we can operate the system and protect this endangered species. The Fish and Wildlife Service recommended this provision.
  • A program to reduce predation: The bill directs agencies to address the threat to smelt and salmon by reducing the threat of predators. The regional administrator for NOAA Fisheries (who oversees salmon in California) has stated that predation in the Delta is “unequivocally” a problem.
  • A program to purchase additional water: The bill authorizes the federal government to purchase water from willing sellers to augment flows needed for fish. Currently there is limited workable authority to accomplish this. The Department of the Interior requested this authority to enable targeted water purchases to provide more water for fish in conjunction with measures to improve habitat and food supply, which will help restore fish populations.
  • Programs to reduce invasive species that harm fish: The bill authorizes pilot projects under a CALFED program to control invasive species. Invasive species—such as water hyacinth and Asian clams—have contributed to the decline of native listed fish in the Bay-Delta, including the Delta smelt.
  • $10 million for wildlife refuges: This will allow refuges to connect to additional sources of water supply, for example through channels.
  • The bill has a comprehensive environmental protection mandate drafted by NOAA Fisheries and the Department of the Interior to ensure that the actions under this bill fully reflect the protections of the Endangered Species Act.
  • Consistency with state law: All provisions in the bill must be consistent with state law including water quality and salinity control standards.
  • Coastal salmon fisheries: The bill protects agencies’ authority to manage salmon and other fisheries off the coast of California, Oregon and Washington under the Magnuson Stevens Act or the Endangered Species Act.
  • Environmentalist and water district input into Endangered Species Act consultation: The bill increases transparency and public input during any Endangered Species Act consultations by providing environmental groups and water districts with the opportunity to work with the agencies on any future biological opinions. The provisions also provide for quarterly stakeholder meetings so the public is kept informed of any Endangered Species Act consultations. Nothing in this section affects in any way the substantive requirements of consultation under the Endangered Species Act to protect species.

Long-term water infrastructure provisions

  • Authorization of projects: $515 million, fully offset, goes to storage, recycling, reuse and desalination projects. These funds will help supplement California’s water bond.
  • Funds: The bill authorizes the following funds:
  • Desalination: $30 million for design and construction of desalination projects.
  • Water recycling, reuse and conservation: Increases funding for WaterSMART by $100 million (from $350 million to $450 million), including $50 million for water supply and conservation activities on the Colorado River. Includes another $50 million for water recycling through a new Title XVI grant program that actually works for new water recycling projects, unlike the current program. The revised program will allow new water recycling projects to get federal funding even if Congress has not authorized each specific project.
  • Storage: $335 million in funding for storage and groundwater projects.
  • Coordinated implementation with the state water bond: This will allow federal funding to go to qualified, environmentally-mitigated and cost-beneficial projects such as desalination, recycling, groundwater and storage projects on the same timeframe as projects funded under the state water bond.

Short-term operational provisions

  • Duration: The short-term operational provisions expire after five years. Researchers from UCLA have reported that it will take approximately four and a half years for a full recovery from the drought.

Eight key provisions will allow more water to be captured and stored:

1) Daily monitoring for fish closer to the pumps will allow pumps to be operated at higher levels while better protecting fish. This daily boat monitoring for smelt will occur when water turbidity levels are high (cloudy water attracts fish to pumps), which will allow pumping decisions to be made based the actual location of the fish.

2) Ending the winter storm “payback” requirement will allow agencies to capture additional water during winter storms. Agencies may increase pumping during winter storms so long as they do not violate the environmental protection mandate. Once storms end, agencies would no longer be required to “pay back” water already pumped unless there was an environmental reason to do so.

3) Requires agencies to explain why pumping occurs at lower levels than allowed by the biological opinions. The requirement is about transparency: agencies must provide reasons for why pumping was reduced.

4) Agencies must maximize water supplies consistent with applicable laws and biological opinions. The bill also makes very clear that agencies can take no action that would violate the Endangered Species Act or biological opinions.

5) Pilot Project to open Delta Cross-Channel Gates in a manner that achieves increased water supply without any harm to fish. The agencies would evaluate alternative ways to open the gates and protect fish during their migration. If the pilot project is successful, it would yield extra water with no harm to the fish or water quality.

6) Extending the time period for water transfers by five months. The current transfer window of July through September is extended to April through November. This makes water available during the critical spring planting season.

7) Allowing a 1:1 ratio for water transfers. The provision provides a strong incentive for water transfers during critical salmon migratory periods in April and May in the lower San Joaquin. Through transfers, the same unit of water can therefore help both fish and farms. This provision helps facilitate voluntary transfers in April and May by allowing a 1:1 inflow to export ratio solely for water transfers. Buyers and sellers have little incentive to transfer water unless they receive the full value of their water—the 1:1 ratio. The bill includes strong environmental protections to ensure this water is in addition to the regular flow of the river, extra water that will benefit fish.

8) Allowing expedited reviews of transfers and the construction of barriers. To expedite environmental reviews of proposed water transfers, agencies are directed to finish their reviews within 45 days of receiving complete applications for the transfers. The approval of temporary salinity barriers must be completed within 60 days. If environmental impact statements must be prepared under NEPA, the agencies can take longer than the generally applicable deadlines.

Outreach process

  • Over the course of two years, Senator Feinstein and her staff took hundreds of meetings, phone calls and discussions. Feedback was accepted from Republicans and Democrats and Senator Feinstein made dozens of changes to the bill text in response to comments from environmental groups, water districts, cities, rural communities, fishermen and farmers.
  • The bill was also reviewed by experts with federal and state agencies to ensure it would remain within the bounds of the Endangered Species Act and relevant biological opinions.
  • A previous version of the bill introduced in February 2016 (S. 2533) received support from 151 organizations and public officials from across California.

Savings clause

  • Following is the bill’s savings clause that prevents the legislation from violating state or federal environmental laws including the Endangered Species Act and biological opinions. Bracketed text is where each part of the clause originated.

Sec. 4012. SAVINGS LANGUAGE.

(a) IN GENERAL.—This Act shall not be interpreted or implemented in a manner that—
(1) preempts or modifies any obligation of the United States to act in conformance with applicable State law, including applicable State water law; [requested by Governor Brown’s office; also included in February 2016 Feinstein drought bill] (2) affects or modifies any obligation under the Central Valley Project Improvement Act (Public Law 102–575; 106 Stat. 4706), except for the savings provisions for the Stanislaus River predator management program expressly established by section 12(b); [included in February 2016 Feinstein drought bill] (3) overrides, modifies, or amends the applicability of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or the application of the smelt and salmonid biological opinions to the operation of the Central Valley Project or the State Water Project; [drafted by NOAA Fisheries and the Department of the Interior; also included in February 2016 Feinstein drought bill] (4) would cause additional adverse effects on listed fish species beyond the range of effects anticipated to occur to the listed fish species for the duration of the applicable biological opinion, using the best scientific and commercial data available; [drafted by NOAA Fisheries and the Department of the Interior] or
(5) overrides, modifies, or amends any obligation of the Pacific Fisheries Management Council, required by the Magnuson Stevens Act or the Endangered Species Act, to manage fisheries off the coast of California, Oregon, or Washington. [requested by Senator Wyden]

(b) SUCCESSOR BIOLOGICAL OPINIONS. —
(1) IN GENERAL. —The Secretaries of the Interior and Commerce shall apply this Act to any successor biological opinions to the smelt or salmonid biological opinions only to the extent that the Secretaries determine is consistent with:
(A) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), its implementing regulations, and the successor biological opinions; and
(B) Subsection (a)(4) above. [requested by administration] (2) LIMITATION. –Nothing in this Act shall restrict the Secretaries of the Interior and Commerce from completing consultation on successor biological opinions and through those successor biological opinions implementing whatever adjustments in operations or other activities as may be required by the Endangered Species Act and its implementing regulations. [requested by administration] (c) SEVERABILITY.—If any provision of this Act, or any application of such provision to any person or circumstance, is held to be inconsistent with any law or the biological opinions, the remainder of this Act and the application of this Act to any other person or circumstance shall not be affected. [included in February 2016 Feinstein drought bill]

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