Gaining Responsibility on Water Act of 2017

Gaining Responsibility on Water Act of 2017

TITLE I--CENTRAL VALLEY PROJECT WATER RELIABILITY

(Sec. 101) This bill amends the Central Valley Project Improvement Act to include among its purposes to: (1) ensure that water dedicated to fish and wildlife purposes is replaced and provided to Central Valley Project (CVP) water contractors by December 31, 2018, at the lowest cost reasonably achievable; and (2) facilitate and expedite water transfers in accordance with such Act.

(Sec. 102) The bill restricts the definition of "anadromous fish" to mean only those native stocks of salmon (including steelhead) and sturgeon that, as of October 30, 1992, were present in the Sacramento and San Joaquin Rivers and their tributaries and ascend those rivers and their tributaries to reproduce after maturing in San Francisco Bay or the Pacific Ocean. The bill defines "reasonable flows" as water flows capable of being maintained taking into account competing consumptive uses of water and economic, environmental, and social factors.

(Sec. 103) Upon request of the contractor, the Department of the Interior shall renew any existing long-term repayment or water service contract that provides for the delivery of water from the CVP for a period of 40 years.

(Sec. 104) The contracting district from which the water is coming, the agency, or Interior shall determine if a written water transfer proposal is complete within 45 days after the date of submission of such proposal. If such district or agency or Interior determines that such proposal is incomplete, it shall state with specificity what must be added or revised in order for such proposal to be complete. Interior shall not impose mitigation or other requirements on a proposed transfer but the contracting district from which the water is coming or the agency shall retain all authority under state law to approve or condition a proposed transfer.

(Sec. 105) The bill modifies provisions of the Central Valley Project Improvement Act regarding fish, wildlife, and habitat restoration.

All CVP water used for such purposes shall be credited to the quantity of CVP yield dedicated and managed under this section by determining how the dedication and management of such water would affect the delivery capability of the CVP during the 1928 to 1934 drought period after fishery, water quality, and other flow and operational requirements imposed by terms and conditions existing in agreements pertaining to the CVP under applicable state or federal law existing on October 30, 1992, have been met. To the fullest extent possible, CVP water shall be reused to fulfill Interior's remaining contractual obligations to provide CVP water for agricultural or municipal and industrial purposes.

If by March 15th of any year, the quantity of CVP water forecasted to be made available to water service or repayment contractors in the Delta Division of the CVP is below 75% of the total quantity of water to be made available under such contracts, the quantity of CVP yield dedicated and managed for that year shall be reduced by 25%.

(Sec. 106) The bill authorizes monies (currently, not less than 67% of funds) available to the Restoration Fund to be appropriated to carry out habitat restoration, improvement, and acquisition (from willing sellers) provisions of the Central Valley Project Improvement Act.

Interior may not require a donation or other payment to the CVP Restoration Fund for: (1) environmental restoration or mitigation fees not otherwise provided by law as a condition to providing for the storage or conveyance of non-CVP water pursuant to federal reclamation laws, or the delivery of temporary supplies of water under the Reclamation Reform Act of 1982; and (2) any water that is delivered with the sole intent of groundwater recharge.

The bill modifies such Act to provide that: (1) additional annual payments after October 1, 2016, shall be allocated so as not to exceed $4 per megawatt-hour for CVP power sold to power contractors (October 2016 price levels) (currently, $12 per acre-foot [October 1992 price levels]) for municipal and industrial water sold and delivered by the CVP; and (2) upon the completion of mandated fish, wildlife, and habitat mitigation and restoration actions (current law) but no later than December 31, 2020, Interior shall reduce specified sums and reduce the annual mitigation and restoration payment ceiling.

The bill establishes the Restoration Fund Advisory Board to meet at least semiannually to make recommendations regarding priorities and spending levels on projects and programs carried out pursuant to the Central Valley Project Improvement Act.

(Sec. 107) The bill revises provisions regarding contracts for additional storage and delivery of water.

Interior shall use its authority in connection with requests to exchange, impound, store, carry, or deliver nonproject water using CVP facilities for any beneficial purpose. It shall develop rates not to exceed the amount required to recover the reasonable costs incurred by it in connection with a beneficial purpose.

Interior's plan for the increase of CVP yield shall include recommendations on appropriate cost-sharing arrangements and authorizing legislation or other measures needed.

Interior shall implement its plan commencing on October 1, 2017, and shall coordinate with the State of California in implementing measures for the long-term resolution of problems in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. If by September 30, 2018, the plan fails to increase the annual delivery capability of the CVP by 800,000 acre-feet, implementation of any non-mandatory action shall be suspended until the plan achieves an increase in the annual delivery capability of the CVP by 800,000 acre-feet.

The Bureau of Reclamation may partner or enter into an agreement on the water storage projects identified in the Water Supply Reliability, and Environmental Improvement Act with local joint powers authorities formed pursuant to state law by irrigation districts and other local water districts and local governments within the applicable hydrologic region, to advance these projects.

(Sec. 108) The CVP and the State Water Project (SWP) shall be operated pursuant to the water quality standards and operational constraints described in the "Principles for Agreement on the Bay-Delta Standards Between the State of California and the Federal Government" dated December 15, 1994, and such operations shall proceed without regard to the Endangered Species Act of 1973 (ESA) or any other law pertaining to the operation of the CVP and the California SWP.

(Sec. 109) Interior and Commerce shall not distinguish between natural-spawned and hatchery-spawned or otherwise artificially propagated strains of a species in making any determinations under the ESA that relates to any anadromous fish species present in the Sacramento and San Joaquin Rivers or their tributaries and ascend those rivers and their tributaries to reproduce after maturing in the San Francisco Bay or the Pacific Ocean.

(Sec. 110) Filing of a Notice of Determination or a Notice of Exemption for any project, including the issuance of a permit under state law, related to any project of the CVP or the delivery of water therefrom in accordance with the California Environmental Quality Act shall be deemed to meet the requirements of the National Environmental Protection Act of 1969 (NEPA) for that project or permit. Reclamation shall not be required to cease or modify any major federal action or other activity related to any project of the CVP or the delivery of water therefrom pending completion of judicial review of any determination made under the NEPA.

(Sec. 111) For adjustments to operating criteria or to take urgent actions to address water supply shortages for the least amount of time or volume of diversion necessary as determined by Reclamation, no mitigation measures shall be required during any year that the Sacramento Valley index is 6.5 or lower, or at the request of the state of California, and until two succeeding years following either of those events have been completed where the final Sacramento Valley Index is 7.8 or greater, and any mitigation measures imposed must be based on quantitative data and required only to the extent that such data demonstrates actual harm to species.

(Sec. 112) In the event that Reclamation or another federal agency initiates or reinitiates consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service under the Endangered Species Act of 1973, with respect to construction or operation of the CVP and SWP, or any part thereof, the SWP contractors and the CVP contractors will be accorded all the rights and responsibilities extended to applicants in the consultation process.

(Sec. 113) The bill amends the San Joaquin River Restoration Settlement Act to require Interior to cease any action to implement: (1) such Act; and (2) the Stipulation of Settlement in Natural Resources Defense Council, et al. v. Kirk Rodgers, et al.

TITLE II--CALFED STORAGE FEASIBILITY STUDIES

(Sec. 201) The Bureau of Reclamation shall:

• complete specified feasibility studies for storage projects in California under the Water Supply, Reliability, and Environmental Improvement Act by November 30, 2018, and by November 30, 2019, as specified;
• document, delineate, and publish costs directly relating to the engineering and construction of a water storage project separately from those resulting from regulatory compliance; and
• communicate, coordinate, and cooperate with public water agencies that contract with the United States for CVP water and that are expected to participate in the cost pools that will be created for projects proposed in such studies.

(Sec. 202) The "Bakersfield Field Office, Record of Decision and Approved Resource Management Plan," dated December 2014 and related findings shall have no effect on or applicability to Interior's determination of feasibility of, or on any findings or environmental review documents related to: (1) the Temperance Flat Reservoir Project on the Upper San Joaquin River, or (2) certain actions taken by Interior pursuant to the Bay-Delta Authorization Act.

(Sec. 203) Reclamation may partner or enter into an agreement on the water storage projects identified in the Water Supply Reliability and Environmental Improvement Act with local join powers authorities formed pursuant to state law by irrigation districts and other local water districts and local governments within the applicable hydrologic region, to advance those projects.

(Sec. 204) Reclamation, in cooperation with the U.S. Geological Survey, the state of California, and local and state water agencies may conduct detailed geophysical characterization activities of subsurface aquifer systems and groundwater vulnerability in California, which has experienced a critical, multiyear drought that resulted in severe groundwater overdraft in some areas, followed by less than optimal recharge from the heavy rainstorms and flooding during the 2016-2017 winter season.

The survey should include data pertaining to: (1) subsurface system framework, occurrence and geometry of aquifer and non-aquifer zones; (2) aquifer storage and transmission characteristics; and (3) areas of greatest recharge potential.

(Sec. 205) Reclamation may partner with academia, specifically the University of California, and state and local water agencies, to develop a study to enhance mountain runoff to CVP reservoirs from headwater restoration with the following aims:

• estimate forest biomass density and annual evapotranspiration (ET) across the Shasta Lake watershed for the past decade using satellite and other available spatial data;
• identify areas on public and private land that have high biomass densities and ET, and assess potential changes in ET that would ensue from forest restoration;
• assess role of subsurface storage in providing drought resilience of forests, based on long-term historical estimates of precipitation, drought severity, and stream discharge; and
• assess role of snowpack in annual water balance across the watersheds.

TITLE III--WATER RIGHTS PROTECTIONS

(Sec. 301) Interior shall confer with the California Department of Fish and Wildlife in connection with the implementation of this title on potential impacts to any consistency determination for operations of the SWP issued pursuant to the California Fish and Game Code.

If, as a result of the application of this title, the California Department of Fish and Wildlife:

• revokes the consistency determinations pursuant to California Fish and Game Code that are applicable to the SWP;
• amends or issues one or more new consistency determinations pursuant to such code in a manner that directly or indirectly results in reduced water supply to the SWP as compared with the water supply available under the smelt biological opinion and the salmonid biological opinion; or
• requires take authorization under such code for operation of the SWP in a manner that results in reduced water supply to the SWP as compared with the water supply available under the smelt biological opinion and the salmonid biological opinion, and as a consequence of Interior's action, CVP yield is greater than it would have been absent Interior's actions, then that additional yield shall be made available to the SWP for delivery to SWP contractors to offset losses resulting from such action.

Interior shall immediately notify the California Department of Fish and Wildlife in writing if Interior determines that implementation of the smelt biological opinion and the salmonid biological opinion consistent with this title reduces environmental protections for any species covered by the opinions.

(Sec. 302) Interior is directed, in the operation of the CVP, to adhere to California's water rights laws governing water rights priorities and to honor water rights senior to those held by the United States for its operation, regardless of the source of priority.

(Sec. 303) Interior shall ensure that, except as otherwise provided for in a water service or repayment contract, actions taken in compliance with legal obligations imposed by this title, including actions under the ESA and other applicable federal and state laws, shall not: (1) result in the involuntary reduction of water supply or fiscal impacts to individuals or districts who receive water from either the SWP or the United States under water rights settlement contracts, exchange contracts, water service contracts, repayment contracts, or water supply contracts; or (2) cause redirected adverse water supply or fiscal impacts to those within the Sacramento River watershed, the San Joaquin River watershed, or the SWP service area.

To the extent that costs are incurred solely pursuant to or as a result of this title and would not otherwise have been incurred by any entity or public or local agency or subdivision of the state of California, such costs shall not be borne by any such entity, agency, or subdivision, unless such costs are incurred on a voluntary basis.

(Sec. 304) Interior must allocate water for irrigation purposes to existing CVP agricultural water service contractors within the Sacramento River Watershed in compliance with specified conditions, based on whether its a wet year, a normal year, or a below normal or above normal year. It shall develop and implement a program to allow existing CVP agricultural water service contractors within the Sacramento River Watershed to reschedule water provided for under their CVP water service contracts from one year to the next.

TITLE IV--MISCELLANEOUS

(Sec. 401) All CVP water, except CVP water released pursuant to U.S. Department of the Interior Record of Decision, Trinity River Mainstem Fishery Restoration Final Environmental Impact Statement/Environmental Impact Report dated December 2000 used to implement an action undertaken for a fishery beneficial purpose that was not imposed by terms and conditions existing in licenses, permits, and other agreements pertaining to the CVP under applicable state or federal law existing on October 30, 1992, shall be credited to the quantity of CVP yield dedicated and managed under this section.

Reclamation policies and allocations shall not be based upon any premise or assumption that CVP contract supplies are supplemental or secondary to any other contractor source of supply.

(Sec. 402) Interior, in the operation of the Trinity River Division of the CVP, shall not make releases from Lewiston Dam in excess of specified volumes for each water-year type (ranging from a critically dry to an extremely wet year) required by the U.S. Department of the Interior Record of Decision, Trinity River Mainstem Fishery Restoration Final Environmental Impact Statement/Environmental Impact Report dated December 2000.

(Sec. 403) Interior shall publish an annual report detailing instream flow releases from the CVP and California SWP, their explicit purpose and authority, and all measured environmental benefit as a result of the releases.

(Sec. 404) If Reclamation initiates or reinitiates consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, with respect to construction or operation of the Klamath Project (or any part thereof), Klamath Project contractors shall be accorded all the rights and responsibilities extended to applicants in the consultation process. Upon request of the Klamath Project contractors, they may be represented through an association or organization.

(Sec. 405) Interior and Agriculture shall recognize: (1) congressional opposition to the violation of private property rights by the California State Water Resources Control Board in their proposal to require a minimum percentage of unimpaired flows in the main tributaries of the San Joaquin River; and (2) the need to provide reliable water supplies to municipal, industrial, and agricultural users across the state.

(Sec. 406) The authority under the Water Infrastructure for Improvements to the Nation (WIIN) Act regarding the New Melones Reservoir shall expire seven years after this bill's enactment.

(Sec. 407) None of the funds made available under provisions of the WIIN Act regarding actions to benefit threatened and endangered species and other wildlife may be used for the acquisition or leasing of land, water for in-stream purposes if the water is already committed to in-stream purposes, or interests in land or water from willing sellers if the land, water, or interests are already designated for environmental purposes by a court adopted decree or order or cooperative agreement.

(Sec. 408) The non-federal program to protect native anadromous fish in the Stanislaus River shall not sunset before January 1, 2023.

TITLE V--WATER SUPPLY PERMITTING ACT

Water Supply Permitting Coordination Act

(Sec. 503) The Bureau of Reclamation is established as the lead agency for purposes of coordinating all reviews, permits, licenses, or other approvals or decisions required under federal law to construct qualifying projects.

Reclamation shall identify, as early as practicable upon receipt of an application for a qualifying project, any federal agency that may have jurisdiction over a review, permit, license, approval, or decision required for a qualifying project. It shall notify any such agency within a reasonable timeframe that the agency has been designated as a cooperating agency for project unless the agency responds notifying Reclamation that the agency:

• has no jurisdiction or authority over the qualifying project;
• has no expertise or information relevant to it; or
• does not intend to submit comments on the qualifying project, or conduct any review of or make any decision regarding such project.

(Sec. 504) The principal responsibilities of Reclamation under this title are to:

• serve as the point of contact for applicants, state agencies, Indian tribes, and others regarding proposed qualifying projects;
• coordinate preparation of unified environmental documentation that will serve as the basis for all federal decisions necessary to authorize the use of federal lands for qualifying projects; and
• coordinate all federal agency reviews necessary for project development and construction of qualifying projects.

The bill delineates Reclamation's coordination responsibilities with respect to pre-application coordination.

(Sec. 505) Upon notification of an application for a qualifying project, all cooperating agencies shall submit to Reclamation a timeframe to complete its authorizing responsibilities and all environmental review material.

(Sec. 506) Interior, after public notice, may accept and expend funds contributed by a nonfederal public entity to expedite the evaluation of a permit but must ensure that funds accepted will not impact impartial decisionmaking.

TITLE VI-- BUREAU OF RECLAMATION PROJECT STREAMLINING

Bureau of Reclamation Project Streamlining Act

(Sec. 603) A project study initiated by Interior after this bill's enactment, under the Reclamation Act of 1902 and all amendatory or supplementary Acts, shall:

• result in the completion of a final feasibility report not later than 3 years after the date of initiation;
• have a maximum federal cost of $3 million; and
• ensure that personnel from the local project area, region, and headquarters levels of the Bureau of Reclamation concurrently conduct the review required under this title.

If Interior determines that a project study will not be conducted in accordance with such requirements, Interior shall:

• prepare an updated project study schedule and cost estimate,
• notify the non-federal project cost-sharing partner that the study has been delayed, and
• provide written notice to Congress.

(Sec. 604) Interior shall: (1) expedite the completion of any ongoing project study initiated before the date of this bill's enactment; and (2) proceed directly to preconstruction planning, engineering, and design of the project in accordance with the Reclamation Act of 1902 and all Acts amendatory or supplementary to such Act if it determines that the project is justified in a completed report. .

(Sec. 605) Interior shall develop and implement a coordinated environmental review process for the development of project studies.

At the request of a participating or cooperating agency or project sponsor, Interior shall convene an issue resolution meeting to resolve issues that may delay completion of the environmental review process or that may result in denial of any approval required for the project study.

The Government Accountability Office shall assess the reforms carried out under this section and submit to Congress a report describing the results.

Interior shall establish a program to measure and report on progress made toward improving and expediting the planning and environmental review process.

(Sec. 606) Interior shall report annually to Congress on future water project development.

(Sec. 607) This bill amends the WIIN Act to make certain provisions applicable to water storage projects and desalination projects inapplicable to projects under this bill.

TITLE VII-- WATER RIGHTS PROTECTION

Water Rights Protection Act of 2017

(Sec. 703) Neither Interior nor USDA shall: (1) condition or withhold the issuance, renewal, amendment, or extension of any permit, approval, or other land use or occupancy agreement on the limitation or encumbrance of any water right or the transfer of any water right to the United States or any other designee, or any other impairment of a water right under state law by federal or state action; or (2) require any water user to apply for or acquire a water right in the name of the United States under state law as a condition of the renewal, amendment, or extension of any permit.

(Sec. 704) In developing any rule, policy, directive, management plan, or similar Federal action relating to the issuance, renewal, amendment, or extension of any permit, approval, license, lease, allotment, easement, right-of-way, or other land use or occupancy agreement, Interior or USDA: (1) shall recognize the longstanding authority of the states relating to evaluating, protecting, allocating, regulating, permitting, and adjudicating water use, and shall coordinate with the states to ensure that any rule, policy, directive, management plan, or similar federal action is consistent with, and imposes no greater restriction or regulatory requirement, than applicable state water law; and (2) shall not adversely affect the authority of a state in permitting the beneficial use of water or adjudicating water rights, any definition established by a state with respect to the term "beneficial use," "priority of water rights," or "terms of use," or any other right or obligation of a state established under state law, or assert any connection between surface and groundwater that is inconsistent with such a connection recognized by state water laws.

(Sec. 705) This section sets forth the effect of this title on existing authorities, rights, and enactments.