H.R. 5781: Legislation Proposed to Maximize Water Supplies to Address Drought in California

H.R. 5781: Legislation Proposed to Maximize Water Supplies to Address Drought in California

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December 5, 2014
H.R. 5781: Legislation Proposed to Maximize Water Supplies to
Address Drought in California
California is experiencing serious water shortages due to
Drought in California: An Analysis of S. 2198 and H.R.
widespread drought. (See Figure 1.) The state is served by
3964.
two large water infrastructure projects that store water for
future use—the federal Central Valley Project (CVP) and
Figure 1. Drought in California, as of December 2,
the State Water Project (SWP). Both projects have had to
2014
reduce water deliveries in 2014 to the farmers and
communities they serve. Many water users have received
no water from the CVP and SWP this year and are
supplementing surface water supplies with groundwater,
leading to concerns that local aquifers are being depleted.
The dry hydrological conditions, in combination with
regulatory restrictions on water being pumped from the
Sacramento and San Joaquin Rivers Delta confluence with
the San Francisco Bay (Bay-Delta) to protect water quality
and fish and wildlife, have resulted in water supply
cutbacks for CVP and SWP water users throughout their
respective service areas and historic cutbacks to senior
water rights in some areas. The effects are widespread and
are being felt by many economic sectors, including
agriculture, urban areas, and fish and wildlife resources.
Water supply reductions and disagreements over the causes
and need for them are at the heart of legislation in the 113th
Congress aimed at maximizing CVP and SWP operations.
Challenges for Congress
Faced with the prospect of another dry winter and water
shortages in 2015, the short-term issue for Congress is how
to respond to demands for increased water deliveries, while
avoiding harm to the environment, including several fish
species, and economies that depend directly on
environmental resources (e.g., recreation, commercial and
sport fishing). Other issues include how to address water
supply in general and how to finance any improvement or
increase in water supply storage given current fiscal
constraints and earmark moratoria. A longer-term issue for
Congress is how to improve federal water delivery
reliability and stabilize the aquatic ecosystems upon which
water and power users and diverse economies depend,
while also protecting and improving habitat for federally
listed species.
Legislative Initiatives
Several bills have been introduced in the 113th Congress to
address California water supply and drought in particular.
This report focuses on the most recent bill, H.R. 5781,
which was introduced on December 2, 2014. It includes a
brief summary of key provisions of H.R. 5781, and a

discussion of how it compares to two other bills aimed at
Source: U.S. Drought Monitor, http://droughtmonitor.unl.edu/ome/
addressing different aspects of drought in California (H.R.
StateDroughtMonitor.aspx?CA.
3964, which passed the House on February 5, 2014; and S.
H.R. 5781 contains three titles that aim to increase water
2198, which passed the Senate on May 22, 2014.) Some of
supplies for users through approving modifications in water
this analysis draws from a CRS report comparing the two
conveyance operations and certain water projects. Under
earlier bills, CRS Report R43649, Federal Response to
the bill, these actions are to be consistent with existing laws
and regulations. H.R. 5781 also would aim to protect water
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H.R. 5781: Legislation Proposed to Maximize Water Supplies to Address Drought in California
rights and existing water allocations for users under certain
two that were not previously listed in H.R. 3964. H.R. 5781
circumstances, and would aim to prohibit any “redirected
also addresses the rights related to specific diversions for
adverse water supply or fiscal impacts.” A summary of the
senior water right holders in the Sacramento Valley and
titles in H.R. 5781 and a comparison to H.R. 3964 and S.
specific protections for Friant Unit water users. Some of
2198, is provided below.
the language appears to address ongoing legal disputes
regarding the priority of water made available from the
Overview of H.R. 5781
CVP under Sacramento Settlement contracts and supplies
Title I. California Emergency Drought Relief. This title
under water service contracts for the same contractors
would direct the Secretaries of the Interior and Commerce
diverting water from the Sacramento River, and is more
to direct the operations of the CVP, and allow the SWP, to
detailed than similar provisions in H.R. 3964. In contrast,
provide the “maximum quantity of water supplies possible”
S. 2198 states: “Nothing in this Act preempts any State law
to water users by approving, consistent with applicable laws
in effect on the date of enactment of this Act, including area
and regulations, certain types of projects and operational
of origin and other water rights protections.” The
changes. The title would also authorize several specific
specificity in H.R. 5781 may raise questions as to what is
measures intended to increase water supplies and streamline
not included in the water rights protection language.
regulatory processes to facilitate their implementation. This
portion of the bill reflects similar aims of S. 2198, with
Title III. Miscellaneous Provisions. This title states that
some key differences concerning the types of projects and
nothing in the bill would preempt or modify the United
operations that could be implemented. These provisions
States’ authority to operate the CVP in accordance with
raise the issue of how agencies will maximize water
state law and established water rights. Further, this title
supplies while staying consistent with existing laws and
states that the act will expire on either September 30, 2016,
regulations, and how these actions will affect environmental
or on the date that the governor of California suspends the
conditions, including water quality and species survival.
state of drought emergency declaration, whichever is later.
Several provisions within the title aim to reduce or monitor
the environmental effects of these activities; however, a
Questions Emerge
new definition of negative effects on a species’ long-term
H.R. 5781 raises several potential questions and issues that
health may affect implementation of actions compared to
are unique to the bill, and in some cases are similar to
existing conditions.
issues raised by S. 2198 and H.R. 3964. For example:
Section 103 of H.R. 5781 would authorize a new
 How will the Secretary of the Interior implement the
“temporary operational flexibility” for pumping water out
provisions in the bill to result in increased water
of the Delta for a “cumulative” period of 28 days during
supplies for users while remaining consistent with
certain high-flow conditions on the Sacramento River. This
existing laws and regulations?
could potentially result in increased pumping and additional
 What are the short- and long-term environmental effects
water supplies for some CVP and SWP contractors
of the bill, given the uncertainty of how long the state
compared to existing conditions. This section could
will be under a drought emergency declaration?
generate concern about the potential environmental effects
of pumping additional water out of the Bay-Delta
 What are the short- and long-term effects on water
ecosystem and its effects on in-Delta or upstream water
users, assuming no redirected adverse impacts or
users. The concern appears to be addressed, in part, by H.R.
changes to state water law?
5781, which directs the Secretaries to comply with ESA,
 How will the potential projects and operational changes,
monitor incidental-take levels of listed species, comply with
as well as mitigation expenses, be funded under this
state regulations, and adhere to state water rights. This
bill?
proposed 28-day period of pumping is not included in S.
2198 or H.R. 3964.
 What are the precedent-setting provisions in the bill for
managing resources while complying with
Title II. Protection of Third Party Water Rights. Title II
environmental laws?
aims to protect California water rights priorities under state
law. It does so by directing the Secretary of the Interior to
Betsy A. Cody, Specialist in Natural Resources Policy
“adhere to California’s water rights laws governing water
Pervaze A. Sheikh, Specialist in Natural Resources Policy
rights priorities and to honor water rights senior to those
Charles V. Stern, Specialist in Natural Resources Policy
held by the United States for operation of the CVP,
regardless of the source of priority.” It also goes on to list
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several specific California water code sections, including

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H.R. 5781: Legislation Proposed to Maximize Water Supplies to Address Drought in California

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