Title X of S. 22: San Joaquin River Restoration

Prepared for Members and Committees of Congress

Historically, the San Joaquin River in Central California has supported large Chinook salmon
populations. Since the Bureau of Reclamation’s Friant Dam on the San Joaquin River became
fully operational in the 1940s, much of the river’s water has been diverted for off-stream
agricultural uses. As a result, approximately 60 miles of the river bed is dry in most years. Thus,
the river no longer supports Chinook salmon populations in its upper reaches. In 1988, a coalition
of conservation and fishing groups sued Reclamation (Natural Resources Defense Council v.
Rodgers). A U.S. District Court judge ruled in 2004 that operation of Friant Dam violates state
law because of its destruction of downstream fisheries. Faced with mounting legal fees,
uncertainty, and the possibility of dramatic cuts to water diversions, parties negotiated a
settlement instead of proceeding to trial. The Settlement reached calls for new releases of water
from Friant Dam to restore fisheries, potential river channel modifications to accommodate
increased flows, and efforts to mitigate reductions in off-stream deliveries lost to restoration
Congressional authorization and appropriations are required for full Settlement implementation. th
Legislation based on the Settlement (H.R. 4074, H.R. 24 and S. 27) was considered in the 110 th
Congress; a new version of the legislation has been introduced in the 111 Congress—Title X of
S. 22, an omnibus public lands bill. A key legislative issue is how to finance the Settlement,
specifically how to resolve direct spending and related congressional pay-as-you-go (PAYGO)
issues. Other challenges have been how to achieve the Settlement’s dual goals of fisheries
restoration and water management, and how to address concerns of stakeholders not party to the
Settlement, without disrupting the negotiated agreement.
The region may benefit from increased recreational expenditures and investment in river
restoration activities under the Settlement. For example, some communities and interests believe
restoration will bring other benefits to the river and river communities, such as improved surface
water quality in lower San Joaquin River reaches and enhanced recreation benefits. On the other
hand, some studies suggest the Settlement would have a negative economic impact on the
agriculture industry, at least in the short term. In addition, downstream interests not party to the
Settlement have been concerned about increased flooding, groundwater infiltration, and
competition with existing federal financial commitments. Nearby communities fear harm to
groundwater quantity and quality. Some of these concerns have been addressed in the newest
version of the legislation, but some may remain.

Introduc tion ..................................................................................................................................... 1
San Joaquin River Settlement..........................................................................................................2
Backgr ound ............................................................................................................................... 2
Friant Division....................................................................................................................3
Chinook Salmon Runs........................................................................................................4
Recent Legal History..........................................................................................................6
Legislative Context...................................................................................................................7
The Settlement and California Water Policy Writ Large...........................................................8
Figure 1. San Joaquin Valley...........................................................................................................3
Figure 2. Friant Division and Water Contractors.............................................................................5
Author Contact Information............................................................................................................9

Historically, Central California’s San Joaquin River supported large Chinook salmon populations.
Since the Bureau of Reclamation’s Friant Dam on the San Joaquin River became fully operational
in the 1940s, much of the river’s water has been diverted for agricultural uses. As a result,
approximately 60 miles of the river is dry in most years, making it impossible to support Chinook
salmon populations in the upper reaches of the river. In 1988, a coalition of conservation and
fishing groups advocating for river restoration to support Chinook salmon recovery sued the
Bureau of Reclamation (hereafter referred to as Reclamation), which owns and operates Friant 1
Dam (Natural Resources Defense Council v. Rodgers). Most long-term water service contractors
who receive the diverted water were added to the case shortly thereafter as defendant intervenors.
A U.S. District Court judge has since ruled that operation of Friant Dam violates state law
because of its destruction of downstream fisheries. Faced with mounting legal fees, considerable
uncertainty, and the possibility of dramatic cuts to water diversions, parties agreed to negotiate a
settlement instead of proceeding to trial on a remedy regarding the court’s ruling.
In September 2006, a Settlement Agreement was reached concerning operation of Friant Dam—
one of the largest federal dams operated as part of Reclamation’s Central Valley Project (CVP) in
California. The Settlement calls for new releases of water from Friant Dam to restore fisheries in
the San Joaquin River and for efforts to mitigate water supply losses due to the new releases. Full
implementation of the Settlement would require congressional authorization and appropriations.
Title X of S. 22 contains a San Joaquin River Restoration Settlement implementation provision.
Under the Settlement and implementing legislation, increased water flows for restoring fisheries
would reduce diversions of water for off-stream purposes, such as irrigation, hydropower, and
municipal and industrial uses. The quantity of water used for restoration flows and the quantity by
which water deliveries would be reduced are related, but the relationship would not necessarily be
one-for-one. For instance, in some of the wettest years, flood water releases could provide a
significant amount of the restoration flows, thereby lowering the reduction in deliveries to
agricultural and municipal users. Under the Settlement, no water would be released for restoration
purposes in the driest of years; thus, no reductions in deliveries to Friant contractors would be
made due to the Settlement in those years. Additionally, in some years, the restoration flows
released in late winter and early spring may free up space for additional runoff in Millerton Lake,
potentially minimizing reductions in deliveries later in the year—assuming Millerton Lake
storage is replenished. Consequently, how deliveries to Friant water contractors might be reduced
in any given year would depend on many factors.
Regardless of the specifics of how much water might be released for fisheries restoration vis-à-vis
water diverted for off-stream purposes, there will be impacts to existing surface and groundwater
supplies in and around the Friant Division Service Area and adjustments in local economies.
Although some opposition to the Settlement and its implementing legislation remains, the largest
and most directly affected stakeholders (i.e., the majority of Friant water contractor organizations,
and environmental, fisheries, and community groups) support proceeding with the Settlement
Agreement, in lieu of going to trial. For some groups, going to trial risks considerable uncertainty
and expense; others may be more willing to take such risks.
NRDC v. Patterson, 333 F. Supp. 2d 906, 925 (E.D. Cal. 2004).

Congressional authorization and appropriations are required for full implementation of the
Settlement. If Congress does not act on the legislation, some fear that the court will order a
remedy, which may differ from the Settlement, and which may have more severe consequences
for area water users and third parties. A key legislative issue is how to finance Settlement 2
implementation, specifically how to resolve congressional Pay-As-You-Go (PAYGO) issues.
Other challenges are how to achieve the Settlement’s dual goals of fisheries restoration and water
management, and how to address concerns of stakeholders not party to the Settlement, without
disrupting the negotiated agreement.
This report provides a brief overview of the Settlement, its legal history, and the legislative
context in which implementing legislation is being considered. For more information on fisheries
restoration, water management, funding, economic, and third party issues, see CRS Report
RL34237, San Joaquin River Restoration Settlement.

The Settlement in the lawsuit Natural Resources Defense Council v. Rodgers, involves operation
of Friant Dam on the San Joaquin River—one of the largest federal dams of the Bureau of
Reclamation’s Central Valley Project (CVP) in California. As shown in Figure 1, Friant Dam and
the Friant Division of the CVP are situated in the southern portion of the San Joaquin Valley
(SJV); however, the San Joaquin River flows north to the San Joaquin and Sacramento Rivers
Delta confluence with San Francisco Bay (Bay-Delta). Hydrologically, the Friant Division
Service Area extends into the Tulare basin. Agriculture in these areas is highly dependent on
irrigation; much of the irrigation water is surface water supplied by the Friant Division. Many
growers also use groundwater, conjunctively managing their surface and groundwater supplies.
This conjunctive management improves seasonal and multi-year water reliability for growers.
The SJV, an eight-county region extending 250 miles from Stockton in the north to Bakersfield in
the south (Figure 1), is both rapidly growing and economically depressed. (For more information
on challenges facing the SJV, see CRS Report RL33184, California’s San Joaquin Valley: A
Region in Transition, by Tadlock Cowan et al.) Yet, the 27,280 square mile SJV is home to five of
the nation’s ten most agriculturally productive counties, as measured by value of total annual
sales. The Friant Division Service Area includes four of these counties: Fresno, Tulare, Kern, and
Merced. The SJV faces significant environmental and natural resource challenges, including the
court-ordered restoration of the San Joaquin River discussed in this report.
House and Senate budget rules require offsets for certain spending measures, including those that include new
mandatory (direct) spending. Finding an offsetthat is, reducing spending elsewhereto fund a new program,
especially one for several hundred million dollars, is an often difficult task.

Figure 1. San Joaquin Valley
Source: Map prepared by The Congressional Cartography Program, Geography and Map Division, Library of
Congress, 2007.
The CVP is a multi-unit, multi-purpose reclamation project administered by the Bureau of
Reclamation (Reclamation) under federal law, including the Reclamation Act of 1902 and
amendatory acts (known as Reclamation Law), the federal Endangered Species Act (ESA),
various other federal environmental and administrative laws, and various state laws. The Friant
Dam was built on the San Joaquin River by Reclamation in the early 1940s. It stores the San
Joaquin River’s flow in Millerton Lake, the reservoir behind the dam, from which water for
irrigation and other purposes is diverted into two canals. Reclamation delivers the impounded
water to 28 irrigation and water districts in the Friant Division pursuant to various types of water
service contracts, many of which originated in the 1940s. The Friant Division serves irrigation
and water districts in the Fresno, Kern, Madera, Merced, and Tulare counties (Figure 2).
Unlike most Reclamation projects, the Friant Division (dam and distribution facilities) is operated 3
in a way that diverts nearly all the San Joaquin River’s flow away from the River. By the late
A 1950 court ruling on the diversion of San Joaquin River flows noted that the court could find no other instance in
which Reclamation was proposing to divert the entire flow of a river. The case involved rights of individuals
downstream to continue to receive water from the river, as well as water for downstream fisheries and recreation.
Eventually, water rights holders below the dam were granted water annually; however, no water was allocated to in-
stream uses below the dam. Even though retaining water for in-stream uses (recreation, ecosystem health, fish and
wildlife, and scenic values) is a relatively modern concept or value, there were local, and vocal, opponents of the
proposed diversion of the river. By the court’s count, there were some 1,000 farmers and ranchers below the dam who
might be negatively affected. (Rank v. Krug, 90 F. Supp. 773 (S.D. Cal. 1950)). Some years later, Reclamation built the
Trinity project, which diverted a significant portion of the Trinity River to other CVP water districts. Trinity River

1940s, Reclamation’s operation of Friant Dam had caused long stretches of the river to dry up.

Portions of the San Joaquin River upstream of its confluence with the Merced River remain
mostly dry today, except during flood events. Reclamation’s operation of Friant Dam largely
destroyed numerous species of native fish from the Upper San Joaquin River, including spring- 4
and fall-run Chinook salmon. The diverted water helped develop and continues to support a
diverse agricultural economy from north of Fresno to Bakersfield—the Friant Division Service
Area (see Figure 2).
While water diverted from rivers helped establish California’s vibrant and valuable agricultural
economy, some California fisheries have declined since the 1940s—particularly commercial
salmon fisheries—due to water diversions and other factors.
Historically, Central Valley spring-run Chinook were found throughout the Central Valley—from
the northern Sacramento River drainage area to the southern portions of the San Joaquin drainage.
The Middle and Upper San Joaquin River historically supported two or more independent
populations of spring-run Chinook salmon. Most spawning by spring-run Chinook salmon in the
San Joaquin River occurred upstream of the current location of Friant Dam. Historical spawning
runs may have exceeded 200,000 fish annually, ascending the river as far as Mammoth Pool
(about 1,000 meters elevation), which lies about 50 miles above Friant Dam. Today Central 5
Valley spring-run Chinook salmon are listed as threatened under the ESA; however, Central
Valley spring-run Chinook salmon have been entirely extirpated from the San Joaquin River 6
drainage, and currently inhabit only the Sacramento River drainage.
Native fall and late-fall-run Chinook salmon continue to spawn in small numbers in the San
Joaquin River tributaries such as the Mokelumne, Stanislaus, Tuolumne, and Merced Rivers.
These fish spawn at lower elevations in these tributaries and have been less affected by dam
construction than were spring-run Chinook salmon. In addition, there is significant artificial
production of fall-run Chinook salmon by California Department of Fish and Game hatcheries on 7
the Tuolumne, Mokelumne, and Merced Rivers. Fall-run Chinook salmon are not listed under the 8
ESA, but are identified as a species of concern.

flows have also been very contentious and, per administrative actions recently upheld by a court ruling, are also to be
increased to support and restore dwindling fisheries.
4 San Joaquin River flows are needed to allow adult salmon to swim upstream to their spawning grounds, to provide
habitat for juvenile salmon, to allow juvenile salmon to swim downstream in the spring through the lower river, and to
dilute toxic and saline drainage to maintain a minimum level of water quality.
5 70 Fed. Reg. 37160, June 28, 2005.
6 J. M. Myers, et al., Status review of Chinook salmon from Washington, Idaho, Oregon, and California, U.S. Dept. of
Commerce, NOAA Tech. Memo. NMFS-NWFSC-35 (1998), pp. 119, 197-199.
7 Ibid, pp. 120, 146, 194-195, 199-201.
8 69 Fed. Reg. 19975, Apr. 15, 2004.

Figure 2. Friant Division and Water Contractors
Source: Friant Water Authority. U.S. Bureau of Reclamation. Map: Congressional Cartography, Library of
Congress, 2007

Litigation involving waters of the San Joaquin River spans several decades. Litigation resulting in
the most recent Settlement, however, can be traced to a 1988 lawsuit. This lawsuit and the
negotiated Settlement Agreement are discussed below.
During the late 1980s the Friant Division water users sought renewal of their long-term water
service contracts with Reclamation. Beginning in 1988, a coalition of environmental groups and
anglers led by the Natural Resources Defense Council (NRDC) challenged the contract renewals
in federal court on a number of environmental grounds. In addition to claims that the process
under which Reclamation had begun contract renewals violated the National Environmental
Policy Act (NEPA) (42 U.S.C. §§ 4321 et seq.) and that the lack of water in the river violated the
ESA (16 U.S.C. §§ 1531-1544), the plaintiffs argued that Reclamation had violated Section 8 of
the Reclamation Act of 1902 (43 U.S.C. § 383). That section provides that Reclamation will act in
conformity with state laws “relating to the control, appropriation, use or distribution of water used
in irrigation.” The state law that is at issue here is California Fish and Game Code § 5937. Section

5937 provides as follows: “The owner of any dam shall allow ... sufficient water to pass over,

around or through the dam, to keep in good condition any fish that may be planted or exist below
the dam.”
The claims have been litigated in the U.S. District Court for the Eastern District of California.
The district court has reviewed the application of § 5937 to the problem at hand on several
occasions since 1988 and has issued several decisions. In 2004, the District Court issued another
decision regarding the application of § 5937 to the San Joaquin River, finding that Reclamation
had violated the state law. It stated: “There can be no genuine dispute that many miles of the San
Joaquin River are now entirely dry, except during extremely wet periods, and that the historical 9
fish populations have been destroyed.” The court did not declare what amount of water was
necessary to satisfy the law or declare any other type of relief; rather, it set a 2006 trial date to
determine a proper remedy.
Faced with the prospect of a court-imposed remedy, and mounting legal fees in preparation for
trial, the parties (NRDC et al., Reclamation et al., and Friant long-term water service contractors)
began a series of settlement negotiations in late 2005, and came to a tentative agreement in June
2006. The terms of the Settlement were then vetted with selected stakeholders, finalized, and
presented to Congress in September 2006—the final Stipulation of Settlement was filed with the
U.S. District Court, Eastern District of California, September 13, 2006. The Settlement
Agreement was accepted by the District Court on October 23, 2006.
The stated goals of the Settlement are twofold: (1) to restore and maintain fish populations in
“good condition”—the § 5937 standard—in the main stem of the San Joaquin River below Friant
Dam to the confluence of the Merced River; and (2) to reduce or avoid adverse water supply
impacts to the Friant long-term water service contractors that may result from both interim flows
NRDC v. Patterson, 333 F. Supp. 2d 906, 925 (E.D. Cal. 2004).

and restorative flows provided in the Settlement. To accomplish these goals, the Settlement calls
for numerous actions, some of which need congressional authorization and appropriations.
Further, appropriations authorization is needed to finance settlement implementation as
envisioned under the Settlement. The Settlement states that if legislation is not enacted by
December 31, 2006, the Settlement may become void at the election of a party, at which point th
litigation might resume. While implementation legislation was considered in the 110 Congress th
(H.R. 4074, H.R. 24 and S. 27), it was not enacted. Title X of S. 22 (the 111 Congress) contains
a revised version of this legislation. Revisions address direct spending and restoration flow
provisions (§§ 10004 and 10009). To date, no party has officially elected to void the Settlement.
In September 2006, the settling parties presented the Settlement, including its legislative
proposal, to various Members of Congress. The parties hoped implementing legislation would be th
enacted prior to adjournment of the 109 Congress. However, numerous entities who were not
party to the Settlement (i.e., third parties), objected to the legislative proposal included in the 10
Settlement, as well as the swift time line imposed by the Settlement Agreement. Shortly
thereafter, many third parties met with the Settlement parties and certain Members of the
California delegation. An agreement was reached to address certain third party interests; in
exchange, these third parties agreed to support new legislation. Although many parties who had
opposed the draft legislation in September 2006 supported the new legislation, other parties
emerged that were not part of the new agreement, resulting in further opposition to Settlement 11
San Joaquin River restoration Settlement legislation was first introduced in early December 2006
(H.R. 6377 and S. 4084); however, no action was taken on the bills before adjournment of the thth

109 Congress. The Settlement bills were reintroduced in the 110 Congress as H.R. 24 and S.

27. Hearings were held in both houses of Congress; however, the legislation was not enacted. One
of the primary hurdles facing the legislation has been its budgetary impact and financing
Implementation of the Settlement calls for construction of numerous projects and other activities
that could cost between $250 million and $1.1 billion. Federal funding for these projects and
activities is sought by the parties and is contemplated under the Settlement. Direct spending
funding mechanisms included in the legislation would typically require a budgetary offset under
congressional PAYGO rules—according to some, a difficult task in today’s budget climate. While
short-term (10 year) direct spending in S. 22 has been reduced substantially compared with earlier
versions of the legislation, the budget effects of the legislation in its entirety are still at issue for
An overall complication for Congress in considering San Joaquin Settlement legislation is that
although the Settlement aims to end a 19-year lawsuit and comports with a court ruling, the
Settlement would affect others outside the Friant Division Service Area. Changes embodied in S.
Testimony presented before the House Resources (renamed House Natural Resources in January 2007) Water and
Power Subcommittee, Sept. 21, 2006, Oversight Hearing on the San Joaquin Restoration Settlement Act.
11 Testimony presented before the House Resources Water and Power Subcommittee, Sept. 21, 2006, Oversight
Hearing on the San Joaquin Restoration Settlement Act, and testimony before the House Natural Resources Water and
Power Subcommittee, March 1, 2007.

22 aim to resolve concern about the introduction of restoration flows. Another complication is the
prospect that funding for the San Joaquin River Settlement may divert funds from salmon
restoration projects in other river basins. Lastly, other recent events potentially limiting water
exports from the Sacramento and San Joaquin Rivers Delta confluence could significantly affect
implementation of the recirculation portion of the water management goal and has caused
increased concern among some stakeholders.
If Congress does not act on the legislation, some fear that the court will order a remedy, which
may differ from the Settlement and which may have more severe consequences for some area
water users and third parties.
The Settlement Agreement and subsequent implementing legislation are the culmination of nearly
two decades of discussion, argument, and study on whether and how to restore fisheries below
Friant Dam, a federally owned and operated facility on the San Joaquin River. The most recent
actions relate to a court decision that Reclamation is operating the dam in violation of California
state fish and game code. The implications of this decision are far reaching for California water
management and for both the directly affected water users and the indirectly affected
communities, landowners, and water users. Several broad policy issues are raised by the
Settlement. These issues partially derive from constraints imposed by the pressure to react to a
settlement responding to a judicial ruling, as opposed to managing or legislating on an issue prior
to, or absent, such a settlement.
Another overarching issue is how San Joaquin River management ties into other CVP
management decisions, as well as state and local water systems. Both the CVP and State Water
Project (SWP)—a largely parallel state water supply system south of the Bay-Delta—are
operating under regulations that limit the amount (and timing) of water that can be exported south
out of the Bay-Delta. Recent court decisions regarding the health of threatened Delta Smelt have
constrained water exports and may constrain future exports. The degree to which some of the
water management goals identified in the Settlement might rely on moving water in and out of the
Bay-Delta could affect the ultimate ability to recapture, recirculate, and/or reuse San Joaquin
River restoration flows. At minimum, it appears the restoration effort will necessitate multi-year
water planning and investments, including having the funding on hand and infrastructure in place
to buy and put to use surplus water (e.g., for groundwater recharge), and to buy water in dry years
for those without sufficient access to groundwater, those with primarily Class II supplies, or in the
driest of years. Therefore, the future of water resource management in the Central Valley is not
just conjunctive water management, but multi-year conjunctive management with the financial
resources to make it happen, in addition to integration of federal, state, local, and private
infrastructure projects. Whether Congress addresses this issue—in California and elsewhere—
given current water resource authorization and appropriations practices and a restrictive
budgetary climate remains to be seen.
While the issues discussed here have confronted prior Administrations and Congresses, a
Settlement Agreement was not reached until the U.S. District Court acted, ultimately resulting in
the difficult choices facing Congress today (e.g., budgetary, water delivery, and ecosystem health
trade-offs). This is a common dilemma for resource agencies implementing projects and programs
which are based on societal and political trade-offs made decades ago (e.g., agricultural industry
over commercial and sport fishing industries, or timber harvest over species habitat). It is hard to
say what is fair or just when such significant trade-offs were made decades ago, causing harm to

some, but providing benefit to others who then made financial and livelihood decisions based on
those policies. In the eyes of many, the San Joaquin river restoration is an effort to respond to
fisheries economic and ecological damage begun 60 years ago; for others the potential of reduced
water supplies for off-stream use is a breach of promises made 60 years ago. For the court, it is a
matter of Friant Dam operations comporting with state law.
Betsy A. Cody Pervaze A. Sheikh
Specialist in Natural Resources Policy Specialist in Natural Resources Policy
bcody@crs.loc.gov, 7-7229 psheikh@crs.loc.gov, 7-6070