R.O. Draft 11/15-2000

 Contract No.

01-WC-20-1757

MEMORANDUM OF UNDERSTANDING

BETWEEN THE U.S. BUREAU OF RECLAMATION 

AND

THE U.S. FISH AND WILDLIFE SERVICE 

PROVIDING FOR 

PROJECT AND ACQUIRED WATER SUPPLIES

TO

THE SACRAMENTO, DELEVAN, COLUSA, AND SUTTER

NATIONAL WILDLIFE REFUGES

CALIFORNIA

Table of Contents

Article No. Page No.

Preamble 1

Explanatory Recitals 1-3

 1 Definitions 3-6

 2 Term of Contract 7

 3 Water to be Made Available and

 Delivered to the Contractor 7-9

 4 Time for Delivery of Water 9-10

 5 Point of Diversion, Measurement and Responsibility for

 Distribution of Water 11

 6 Pooling of Water Supplies 11-12

 7 Transfers, Reallocations or Exchanges of Water 12-13

 8 Temporary Reductions–Return Flows 13-14

 9 Water Shortage and Apportionment 14

 10 Rules and Regulations 15

 11 Quality of Water 15-16

 12 Use of Non-Project Facilities for Water Delivery 16

 13 Opinions and Determinations 16-17

 14 Water Conservation 17-19

 15 Existing or Acquired Water Rights 19

 Signature Page 20

Exhibit A

Exhibit B
1 R.O. Draft 11/15-2000

2 Contract No.

3 01-WC-20-1757

4 MEMORANDUM OF UNDERSTANDING

5 BETWEEN THE U.S. BUREAU OF RECLAMATION 

6 AND

7 THE U.S. FISH AND WILDLIFE SERVICE 

8 PROVIDING FOR 

9 PROJECT AND ACQUIRED WATER SUPPLIES

10 TO

11 THE SACRAMENTO, DELEVAN, COLUSA, AND SUTTER

12 NATIONAL WILDLIFE REFUGES

13 CALIFORNIA

14 THIS MEMORANDUM OF UNDERSTANDING (MOU), made this 19 day of 

15 January , 2001 , by and between THE UNITED STATES BUREAU OF RECLAMATION

16 (Reclamation), and THE U.S. FISH AND WILDLIFE SERVICE (Service), hereinafter called the

17 “parties,” defines the parties’ roles and responsibilities to meet the requirements of Section 3406(d) of

18 the Central Valley Project Improvement Act of October 30, 1992, Title XXXIV of Pub. L. No. 102-

19 575 (CVPIA) which states, in pertinent part,”... the Secretary shall provide, either directly or through

20 contractual agreements with other appropriate parties, firm water supplies of suitable quality to maintain

21 and improve wetland habitat areas on units of the National Wildlife Refuge System in the Central Valley

22 of California; ...”

23 EXPLANATORY RECITALS

24 WHEREAS, the United States has constructed and is operating the Central Valley

25 Project, California (Project), for diversion, storage, carriage, and distribution of the waters of the

26 Sacramento River, the American River, the Trinity River, and the San Joaquin River and their tributaries

27 for the following beneficial uses, including, but not limited to, flood control, irrigation, municipal,
2

28 domestic, industrial water service, the protection, restoration and enhancement of fish, and wildlife, and

29 associated habitats in the Central Valley, the generation and distribution of electric energy, salinity

30 control, and navigation; and 

31 WHEREAS, the wetlands of the Central Valley have declined to approximately

32 300,000 acres and these remaining wetlands provide critical wildlife habitat and other environmental

33 benefits, and important recreational and educational opportunities; and

34 WHEREAS, the Bureau of Reclamation’s 1989 Refuge Water Supply Report

35 concluded that “... it is clear that each refuge requires a dependable supply of good quality water to

36 facilitate proper wetland habitat management for the migratory birds of the Pacific Flyway and resident

37 wildlife and flora.”; and 

38 WHEREAS, Section 3406(d) of the CVPIA requires the Secretary to provide firm

39 water supplies of suitable quality, through long-term contractual agreements with appropriate parties, to

40 maintain and improve certain wetland habitat areas in the Central Valley

41 in furtherance of the objectives of the Central Valley Habitat Joint Venture and the Central Valley

42 Project to protect, restore and enhance fish and wildlife and associated habitats; and

43 WHEREAS, the directives of Section 3406(d) of the CVPIA have been carried out

44 through a cooperative and collaborative effort between the Bureau of Reclamation and Fish and

45 Wildlife Service, acting for the Secretary of the Interior, the California Department of Fish and Game,

46 the Grassland Water District, and the Central Valley Habitat Joint Venture partners; and this

47 cooperative and collaborative effort is expected to continue; and

48 WHEREAS, Reclamation intends to use Project facilities, in part, to provide firm water

49 supplies of suitable quality to maintain and improve the Refuges; and 
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50 WHEREAS, the Service has demonstrated to the satisfaction of Reclamation that the

51 Service has fully utilized the water supplies available to it for reasonable and beneficial use for fish and

52 wildlife preservation and enhancement (wetland management) and/or Reclamation has concluded

53 through the Bureau of Reclamation’s 1989 Refuge Water Supply Report and the San Joaquin Basin

54 Action Plan/Kesterson Mitigation Action Plan Report that the Service has projected future demand for

55 water use such that the Service has the capability and expects to fully utilize for reasonable and

56 beneficial use the quantity of water to be made available to it pursuant to this MOU; and

57 WHEREAS, Reclamation and the Service are willing to execute this MOU pursuant

58 to subsection 3406(d) of the CVPIA on the terms and conditions set forth below;

59 NOW, THEREFORE, in consideration of the mutual and dependent covenants herein

60 contained, it is hereby mutually agreed by the parties hereto as follows:

61 DEFINITIONS

62 1. When used herein unless otherwise distinctly expressed, or manifestly incompatible

63 with the intent of the parties or expressed in this MOU, the term:

64 (a) "Calendar Year" shall mean the period January 1 through December 31, both

65 dates inclusive;

66 (b) “Service’s Boundary” shall mean the Refuge(s) to which the Service is

67 permitted to provide Delivered Water under this MOU as identified in Exhibit “A”. Exhibit “A” may be

68 revised without amending this MOU upon mutual agreement of the Service and Reclamation;

69 (c) Omitted

70 (d) “Critically Dry Year” shall mean any Year in which either of the following

71 eventualities exists:
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72 (1) The forecasted full natural inflow to Shasta Lake for the current water

73 year (October 1 of the preceding Calendar Year through September 30 of the current Calendar Year),

74 as such forecast is made by Reclamation, on or before February 20, and reviewed as frequently

75 thereafter as conditions and information warrant, is equal to or less than 3,200,000 acre feet: or

76 (2) The total accumulated actual deficiencies below 4,000,000 acre-feet in

77 the immediately prior water year or series of successive prior water years, each of which had inflows of

78 less than 4,000,000 acre-feet, together with the forecasted deficiency for the current water year exceed

79 800,000 acre-feet;

80 For the purpose of determining a Critically Dry Year, the computed inflow to

81 Shasta Lake under present upstream development above Shasta Lake shall be used as the full natural

82 inflow to Shasta Lake. In the event that major construction completed above Shasta Lake materially

83 alters the present regimen of the stream systems contributing to Shasta Lake, the computed inflow to

84 Shasta Lake used to define a Critically Dry Year will be adjusted to eliminate the effect of such material

85 alterations.

86 After consultation with the State, the National Weather Service, and other

87 recognized forecasting agencies, Reclamation shall select the forecast to be used and will make the

88 details of it available to the Service. The same forecast used by Reclamation for operation of the

89 Project shall be used to make forecasts hereunder.

90 (e) "CVPIA" shall mean the Central Valley Project Improvement 

91 Act, Title XXXIV of the Act of October 30, 1992 (106 Stat. 4706); 

92 (f) "Delivered Water" shall mean the Level 2 Water Supplies and the Incremental

93 Level 4 Water Supplies diverted by the Service pursuant to this MOU at the Point(s) of Delivery in
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94 accordance with Article 4(c) of this MOU; 

95 (g) “Hydrologic Circumstances” shall mean the conditions described in subdivision

96 (d) of this Article;

97 (h) “Incremental Level 4 Water Supplies” shall mean the difference between the

98 Level 2 Water Supplies and the Level 4 Water Supplies depicted in Exhibit “B”;

99 (i) "Level 2 Water Supplies" shall mean the quantities of water referred to in

100 section 3406 (d)(1) of the CVPIA and depicted in Exhibit “B”of this MOU;

101 (j) “Level 4 Water Supplies” shall mean the quantities of water referred to in

102 section 3406 (d)(2) of the CVPIA and depicted in Exhibit “B”of this MOU;

103 (k) “Non-Project Facilities” shall mean any non-Project water conveyance or

104 storage facilities;

105 (l) “Non-Project Water” shall mean water or water rights, other than “Project

106 Water”, acquired, appropriated by, transferred to or assigned to the Service or, transferred to the

107 United States for delivery to one or more of the Service’s Refuges, as identified in Exhibit “B”;

108 (m) “Point(s) of Delivery” shall mean the location(s) established and revised

109 pursuant to Article 5(a) of this MOU , at which Level 2 Water Supplies of Project Water and

110 Incremental Level 4 Water Supplies are deemed to be delivered to the Service and at which the

111 Service shall assume the responsibility for the further control, carriage, handling, use, disposal or

112 distribution of such water supplies so long as such water supplies are being used in accordance with the

113 terms and conditions of this MOU; 

114 (n) “Project” shall mean the Central Valley Project owned by the United States

115 and managed by the Department of the Interior, Bureau of Reclamation;
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116 (o) “Project Water” shall mean all water that is developed, diverted, stored, or

117 delivered by the Secretary in accordance with the statutes authorizing the Central Valley Project and in

118 accordance with the terms and conditions of applicable water rights acquired pursuant to California

119 law;

120 (p) “Refuge(s)” shall mean the lands in the units of the National Wildlife Refuge

121 System in the Central Valley of California; Gray Lodge, Los Banos, Volta, North Grasslands and

122 Mendota state wildlife management areas; and the Grassland Resource Conservation District all

123 identified in the Refuge Water Supply Report and the land(s) identified in the San Joaquin Basin Action

124 Plan/Kesterson Mitigation Action Plan Report prepared by the Bureau of Reclamation as set forth in

125 Section 3406(d) of the CVPIA and/or as revised in accordance with subdivision (b) of this Article; 

126 (q) “Refuge Water Supply Report” shall mean the report issued by the Mid-Pacific

127 Region of the Bureau of Reclamation of the United States Department of the Interior entitled “Report

128 on Refuge Water Supply Investigations, Central Valley Hydrologic Basin, California” (March 1989);

129 (r) "Secretary" shall mean the Secretary of the Interior, a duly appointed

130 successor, or an authorized representative acting pursuant to any authority of the Secretary through any

131 agency of the Department of the Interior;

132 (s) "Year" shall mean the period from and including March 1 of

133 each Calendar Year through the last day of February of the following Calendar Year;

134 TERM OF MOU 

135 2. (a) This MOU shall be effective on March 1, 2001 and shall remain in effect

136 through February 28, 2026.
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137 (b) Upon request by the Service, this MOU shall be renewed for successive periods of

138 twenty-five (25) years each, subject to the terms and conditions mutually agreeable to the parties. The

139 Service shall request renewal of the MOU at least two (2) years prior to the date on which this MOU

140 expires.

141 WATER TO BE MADE AVAILABLE AND DELIVERED TO THE SERVICE

142 3. (a) During each Year, consistent with State water rights, permits and licenses,

143 federal law, and subject to the provisions set forth in Articles 8 and 9 of this MOU, Reclamation shall

144 make available at the established Point(s) of Delivery, and/or convey to the Service the maximum

145 quantities of Project Water and Non-Project Water, respectively, required to provide each of the

146 Refuges with the Level 2 Water Supplies set forth in Exhibit “B” and the Incremental Level 4 Water

147 Supplies set forth in Exhibit “B”. The quantities of Level 2 Water Supplies and Incremental Level 4

148 Water Supplies made available and/or conveyed to the Service shall be scheduled in accordance with

149 the provisions of Article 4 of this MOU; Provided, that, Section 3406(d)(2) of the CVPIA provides

150 that the Incremental Level 4 Water Supplies shall be acquired in cooperation with the State of

151 California and in consultation with the Central Valley Habitat Joint Venture and other interests in

152 cumulating increments of not less than ten percent per annum, from the date the CVPIA was enacted,

153 through voluntary measures which include, but are not limited to, water conservation, conjunctive use,

154 purchase, lease, donations, or similar activities, or a combination of such activities which do not require

155 involuntary reallocation of Project yield, water being provided as all or part of the Incremental Level 4

156 Water Supplies for each of the Refuges can be made available only to the extent that Reclamation is

157 able to acquire the Incremental Level 4 Water Supplies from willing sources; Accordingly, Reclamation

158 shall use its best efforts to acquire the Incremental Level 4 Water Supplies and shall coordinate
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159 acquisitions of Level 4 Water Supplies with acquisitions of Environmental Water Account (EWA)

160 water pursuant to the Operating Principles Agreement, dated August 28, 2000, attached to the Record

161 of Decision for the CALFED Bay-Delta Program, dated August 28, 2000, and/or other acquisitions of

162 water for environmental purposes to ensure that acquisitions of Incremental Level 4 Water Supplies

163 have a priority at least equal to acquisitions of EWA and/or other environmental water each year.

164 Reclamation also agrees that the Interagency Refuge Management Team, created pursuant to Article 6

165 of this Contract, shall be included among the interests consulted in acquiring Incremental Level 4 Water

166 Supplies. 

167 (b) The Service shall continue use of the Non-Project Water component of the

168 Level 2 Water Supplies set forth in Exhibit “B” as long as such Non-Project Water remains available to

169 the Service and is of suitable quality. In the event that such water supply is unavailable to the Service,

170 or is not of suitable quality, subject to the provisions set forth in Articles 8 and 9 of this MOU,

171 Reclamation shall deliver to the Service sufficient substitute Project Water to ensure that the quantities

172 of Level 2 Water Supplies are available to the Service in accordance with subdivision (a) of this Article.

173 (c) The Service shall comply with all requirements of any biological opinion(s)

174 addressing the execution of this MOU developed pursuant to Section 7 of the Endangered Species Act

175 of 1973, as amended, which are applicable to each of the Refuge(s) and comply with environmental

176 requirements applicable to each of the Refuge(s) as may be required for specific activities.

177 (d) The Service shall make reasonable and beneficial use of all Delivered Water

178 furnished pursuant to this MOU consistent with the wetland habitat water management plan(s)

179 described in Article 14 of this MOU. 

180 (e) In order to maximize water available to Refuges and better manage such water,
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181 the Service may request Reclamation’s permission to reschedule a portion of the Level 2 Water

182 Supplies and/or a portion of the Incremental Level 4 Water Supplies made available to the Service for

183 use within the Service’s Boundary during the current Year for use within the subsequent Year. 

184 Reclamation may permit such rescheduling in accordance with applicable law, and the then-current

185 applicable rescheduling guidelines and policies. Upon execution of this MOU, Reclamation shall have

186 adopted amendments to any applicable rescheduling guidelines and policies to provide for the

187 rescheduling of refuge water in accordance with this Article. After execution of this MOU and annually

188 thereafter, Reclamation shall provide the Service with a copy of the then-current rescheduling

189 guidelines and policies.

190 (f) Reclamation shall not interfere with the Service's right pursuant to Federal

191 Reclamation law and applicable California law to the beneficial use of water furnished pursuant to this

192 MOU so long as the Service fulfills all of its obligations under this MOU. A reduction in water supplies

193 pursuant to Article 9 of this MOU shall not be deemed to constitute such interference.

194 TIME FOR DELIVERY OF WATER

195 4. (a) On or about February 20 of each Calendar Year, Reclamation shall provide the

196 Service, in writing, with a preliminary forecast of whether the upcoming Year will be a Critically Dry

197 Year; and, if a Critically Dry Year is forecast, the extent to which Level 2 Water Supplies to be made

198 available to the Service during the upcoming Year are to be shorted pursuant to Article 9 of this MOU; 

199 and the amount of Incremental Level 4 Water Supplies estimated to be made available to the Service

200 pursuant to this MOU for the upcoming Year. The forecast will be updated monthly, as necessary,

201 based on then-current hydrologic conditions. Upon the request of the Service, Reclamation shall make

202 available to the Service the data on which Reclamation relied to determine whether the Year in question
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203 will or will not be a Critically Dry Year and to determine the amounts of Level 2 Water Supplies and

204 Incremental Level 4 Water Supplies to be made available to the Service pursuant to this MOU during a

205 Critically Dry Year.

206 (b) Based on the forecast(s) referred to in subdivision (a) of this Article, on or

207 before March 1 of each Calendar Year, the Service shall submit to Reclamation a written schedule,

208 satisfactory to Reclamation, showing both the monthly and annual quantities of Level 2 Water Supplies

209 and Incremental Level 4 Water Supplies to be delivered by Reclamation to each of the Refuges

210 pursuant to this MOU. Each schedule shall be updated on a monthly basis to reflect actual use and

211 remaining estimated needs.

212 (c) In accordance with subdivision (a) of Article 3 of this MOU, Reclamation shall

213 make available and/or convey Level 2 Water Supplies and Incremental Level 4 Water Supplies for

214 diversion by the Service at the Points of Delivery in accordance with the schedule submitted by the

215 Service pursuant to subdivision (b) of this Article, or any written revision(s) thereto, mutually agreed to

216 by Reclamation and the Service which are submitted to Reclamation within a reasonable time prior to

217 the date(s) on which the requested change(s) is/are to be implemented.

218 POINT OF DIVERSION, MEASUREMENT AND RESPONSIBILITY FOR DISTRIBUTION 

219 OF WATER

220 5. (a) The original Point(s) of Delivery shall be established by written mutual

221 agreement of the Service and Reclamation. Such Point(s) of Delivery may be revised without amending

222 this MOU upon written mutual agreement of Reclamation and the Service.

223 (b) All water delivered to the Service pursuant to this MOU is to be measured at

224 the Point(s) of Delivery to reflect the quantities of Level 2 Water Supplies and Incremental Level 4
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225 Water Supplies delivered to the Service’s Boundary. Upon the request of the Service or on

226 Reclamation’s own initiative, Reclamation shall investigate the accuracy of such measurements and the

227 parties will jointly take any necessary steps to adjust any errors appearing therein. For any period of

228 time when accurate measurement has not been made, Reclamation shall consult with the Service prior

229 to making a determination of the quantity of Delivered Water for that period of time. The Service shall

230 advise Reclamation on or before the 10th calendar day of each month of the quantities of Level 2

231 Water Supplies and Incremental Level 4 Water Supplies taken during the preceding month at the

232 Point(s) of Delivery.

233 (c) Reclamation shall not be responsible for the control, carriage, handling, use,

234 disposal, or distribution of water delivered to the Service pursuant to this MOU beyond the Point(s) of

235 Delivery specified in subdivision (a) of this Article.

236 POOLING OF WATER SUPPLIES

237 6. (a) Whenever the maximum quantities of Level 2 Water Supplies and/or the

238 Incremental Level 4 Water Supplies depicted in Exhibit “B” are reduced pursuant to Article 9 of this

239 MOU, the remaining Level 2 Water Supplies and/or the Incremental Level 4 Water Supplies may be

240 pooled for use on other Refuge(s); Provided, that no individual Refuge shall receive more Level 2

241 Water Supplies than would have been made available to it absent a reduction pursuant to Article 9 of

242 this MOU; or be reduced by more than twenty-five (25) percent; Provided further, that Reclamation

243 makes a written determination that pooling of water for use on other Refuge(s) would not have an

244 adverse impact, that cannot be reasonably mitigated, on Project operations, other Project Contractors,

245 or other Project purposes; Provided further, that Reclamation determines that such reallocation is

246 permitted under the terms and conditions of the applicable underlying water right permit and/or license;
12

247 and Provided still further, that water made available under this MOU may not be scheduled for

248 delivery outside the Service’s Boundary without prior written approval of Reclamation.

249 (b) An Interagency Refuge Water Management Team, to be chaired by

250 Reclamation and to be established upon execution of this MOU, shall be entitled to collaboratively

251 allocate the pooled water supplies and provide a schedule for delivery of the pooled supplies to meet

252 the highest priority needs of the Refuge(s) as depicted in Exhibit “B”; Provided, however, nothing in this

253 Article is intended to require the Service to pool the water supply provided for in this MOU. The

254 Interagency Refuge Water Management Team shall be composed of designees of the Bureau of

255 Reclamation, the United States Fish and Wildlife Service, the California Department of Fish and Game,

256 and the Grassland Water District.

257 TRANSFERS, REALLOCATIONS OR EXCHANGES OF WATER 

258 7. Subject to the prior written approval of Reclamation, the Project Water made available

259 under this MOU may be transferred, reallocated or exchanged in that Year to other Refuge(s) or

260 Project contractors if such transfer, reallocation or exchange is requested by the Service and is

261 authorized by applicable Federal and California State laws, and then-current applicable guidelines or

262 regulations.

263 TEMPORARY REDUCTIONS--RETURN FLOWS

264 8. (a) Consistent with the authorized purposes and priorities of the Project and the

265 requirements of Federal law, Reclamation shall make all reasonable efforts to optimize water deliveries

266 to the Service as provided in this MOU.

267 (b) The quantity of water to be delivered to the Service as herein provided may be

268 temporarily discontinued or reduced when investigation, inspection, maintenance, repair, or replacement
13

269 of any of the Project facilities and/or Non-Project Facilities or any part thereof necessary for the

270 delivery of water to the Service is required. Reclamation shall give and/or arrange to have the

271 owner/operator of Non-Project Facilities give the Service due written notice in advance of such

272 temporary discontinuance or reduction, except in case of an emergency, when no advance notice is

273 possible, in which case Reclamation shall notify and/or arrange to have the owner/operator of the Non274 Project Facilities notify the Service of said discontinuance or reduction as soon as is feasible; Provided,

275 that Reclamation shall use its best efforts to avoid any discontinuance or reduction in such service. 

276 Upon resumption of service after such reduction or discontinuance, and if requested by the Service,

277 Reclamation will make all reasonable efforts, consistent with other obligations and operational

278 constraints, to deliver the quantity of water which would have been delivered hereunder in the absence

279 of such discontinuance or reduction.

280 (c) The United States reserves the right to all seepage and return flow water

281 derived from Delivered Water which escapes or is discharged beyond the Service’s Boundary; 

282 Provided, that this shall not be construed as claiming for the United States any right to seepage or return

283 flow being put to beneficial use pursuant to this MOU within the Service’s Boundary by the Service or

284 those claiming by, through, or under the Service.

285 WATER SHORTAGE AND APPORTIONMENT

286 9. (a) In a Critically Dry Year, Reclamation may temporarily reduce, for that Year,

287 the availability of Level 2 Water Supplies up to twenty-five (25) percent of the maximum quantities set

288 forth in Exhibit “B” whenever reductions due to Hydrologic Circumstances are imposed upon

289 agricultural deliveries of Project Water; Provided, that such reductions shall not exceed in percentage

290 terms the reductions imposed on agricultural service contractors. The quantity of Non-Project Water
14

291 available to one or more of the Refuges as part of its/their Level 2 Water Supplies may be reduced by

292 more than twenty-five (25) percent in Years when the quantity of Project Water made available to the

293 Service can be reduced by no more than twenty-five (25) percent. In such cases, Reclamation shall

294 make up the supply difference with water supplies provided by Reclamation to ensure that Level 2

295 Water Supplies from all sources are not reduced by more than twenty-five (25) percent.

296 (b) Reductions in the Level 2 Water Supplies to be made available to the individual

297 Refuge(s) pursuant to this MOU, shall be imposed only in a Critically Dry Year. For the Incremental

298 Level 4 Water Supplies provided from Non-Project Water and Project Water, reductions shall be

299 imposed in accordance with the priority or priorities that were applied to such Non-Project Water and

300 the shortages assigned to Project Water prior to its transfer or acquisition as Incremental Level 4 Water

301 Supplies.

302 RULES AND REGULATIONS

303 10. The parties agree that the delivery of water pursuant to this MOU is subject to Federal

304 Reclamation law, as may be amended and supplemented, as applicable, and the rules and regulations

305 promulgated by the Secretary of the Interior under Federal Reclamation law. 

306 QUALITY OF WATER

307 11. (a) Consistent with other legal obligations, the water delivered by Reclamation to

308 the Service pursuant to this MOU shall be of suitable quality to maintain and improve wetland habitat

309 areas and of comparable quality to water provided to other Project purposes within the same
15

310 geographical areas; Provided, that Reclamation is under no obligation to construct or furnish water

311 treatment facilities to maintain or to improve the quality of the water furnished to the Service pursuant to

312 this MOU. The quality of Delivered Water may be monitored by the Service at the Point(s) of Delivery

313 on an as needed basis. Should Reclamation, in consultation with the Service, determine that the Level 2

314 Water Supplies and/or the Level 4 Water Supplies to be made available to the Service pursuant to this

315 MOU during all or any part of a Year will not be of the quality that the Service feels is suitable to

316 maintain and improve wetland habitat areas, the Service and Reclamation shall meet within 48 hours or

317 at a time mutually agreeable to the parties and determine the appropriate actions necessary to identify

318 and address the source of the water quality problems.

319 (b) The operation and maintenance of Project facilities shall be performed in such

320 manner as is practicable to maintain the quality of raw water made available through such facilities at the

321 highest level reasonably attainable as determined by Reclamation. The Service shall be responsible for

322 compliance with all State of California and Federal water quality standards and directives applicable to

323 surface return flows and subsurface agricultural drainage discharges generated within its boundaries

324 arising from water conveyed to the Refuges pursuant to this MOU. This MOU does not create any

325 obligation on Reclamation to provide drainage services.

326 USE OF NON-PROJECT FACILITIES FOR WATER DELIVERY

327 12. Any use of Non-Project Facilities, including use of State Water Project facilities

328 pursuant to Joint Point of Diversion or other use of State Water Project facilities to deliver the water

329 supplies provided for in the MOU, or any agreement for the use of such Non-Project Facilities, shall in

330 no way alter the obligation of Reclamation to make available and deliver water supplies in accordance

331 with all of the terms and conditions of this MOU. In addition, any costs incurred in the use of Non-
16

332 Project Facilities to deliver water supplies pursuant to this MOU shall be paid for in accordance with

333 Section 3406(d)(3) of the CVPIA.

334 OPINIONS AND DETERMINATIONS

335 13. (a) Where the terms of this MOU provide for actions to be based upon the opinion

336 or determination of either party to this MOU, said terms shall not be construed as permitting such

337 action to be predicated upon opinions or determinations that are arbitrary, capricious or unreasonable. 

338 Both parties, notwithstanding any other provisions of this MOU, expressly reserve the right to seek

339 relief from and appropriate adjustment for any such arbitrary, capricious, or unreasonable opinion or

340 determination. Each opinion or determination by either party shall be provided in a timely manner. 

341 Nothing in this subdivision of this Article is intended to or shall affect or alter the standard of judicial

342 review applicable under federal law to any opinion or determination implementing a specific provision of

343 federal law embodied in statute or regulation.

344 (b) Both parties to this MOU shall have the right to make determinations

345 necessary to administer this MOU that are consistent with the provisions of this MOU, the laws of the

346 United States and of California, and the rules and regulations promulgated by the Secretary of the

347 Interior. Each party shall make such determinations in consultation with the other party to the extent

348 reasonably practicable.

349 WATER CONSERVATION

350 14. (a) The Service shall prepare individual refuge wetland habitat water management

351 plan(s) in order to ensure the effective use of water supplies to meet wetland resource needs and to

352 meet the objectives of the Central Valley Habitat Joint Venture and the purposes of the CVPIA to

353 maintain and improve certain Central Valley wetland habitat areas. Criteria to prepare and evaluate
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354 refuge wetland habitat water management plan(s) shall be developed by the Interagency Refuge Water

355 Management Team within one (1) year of the execution of this MOU, and reviewed and updated every

356 five (5) years thereafter taking into consideration the provisions of the Interagency Coordinated

357 Program Task Force report dated June 1998. The criteria shall include economically feasible water

358 management measures which can improve the Services’ efficient use of water in a manner appropriate

359 for wetland and wildlife management, and shall also include time schedules for meeting the water use

360 efficiency and conservation objectives. The criteria shall grant substantial deference to on-going state

361 efforts related to wetlands water management and shall take into account the unique requirements

362 associated with water use for the maintenance and enhancement of wetland and wildlife habitat. The

363 Service shall make all reasonable efforts to complete the original wetland habitat water management

364 plan(s) within one (1) year of the establishment of the criteria. Reclamation will review and determine if

365 the wetland habitat water management plan(s) meet the established criteria for evaluating said plan

366 within ninety (90) days of receipt of each plan.

367 (b) Prior to the Service being afforded opportunities such as pooling

368 and rescheduling of water supplies pursuant to Articles 3 and 6 of this MOU, the Service must be

369 implementing a wetland habitat water management plan that has been determined by Reclamation to

370 meet the established criteria developed pursuant to subdivision (a) of this Article for preparing and

371 evaluating said plan. Continued pooling and rescheduling benefits pursuant to Articles 3 and 6 of this

372 MOU shall be contingent upon the Service’s continued implementation of such wetland habitat water

373 management plans. In the event Reclamation determines the Service is unable to implement its wetland

374 habitat water management plan, due to circumstances beyond its control, the benefits of Articles 3 and

375 6 of this MOU shall be continued so long as the Service diligently works with Reclamation to obtain
18

376 such determination at the earliest practicable date, and thereafter the Service begins implementing its

377 wetland habitat water management plan immediately after the circumstances preventing implementation

378 have ceased.

379 (c) In the event that implementation of the wetland habitat water management

380 plan(s) prepared pursuant to subdivision (a) of this Article results in water savings, all conserved water

381 supplies may be transferred/reallocated, under the terms and conditions of this MOU, to other wetland,

382 wildlife and fishery needs or to other Project contractors in accordance with the recommendations of

383 the Interagency Refuge Water Management Team established pursuant to Article 6 of this MOU;

384 Provided, that Reclamation makes a written determination that such transfer/reallocation of conserved

385 water would not have an adverse impact, that cannot be reasonably mitigated, on Project operations,

386 other Project Contractors or other Project purposes; Provided further, that the transfer/reallocation is

387 requested by the Service and Reclamation determines that the transfer/reallocation is authorized by

388 applicable laws, and then-current applicable guidelines and/or regulations.

389 (d) The Service shall submit to Reclamation an annual update on the status of its

390 implementation of the wetland habitat water management plan(s) for the previous Water Year.

391 (e) At five (5) year intervals, the Service shall revise its wetland habitat water

392 management plan(s), as necessary, to reflect the then-current criteria for preparing and evaluating said

393 plans and submit such revised plan(s). Upon completion of such revised plan(s), the Service shall

394 submit such revised plan(s) to Reclamation for review and so Reclamation can determine whether such

395 plan(s) meet the then-current criteria. 

396 EXISTING OR ACQUIRED WATER OR WATER RIGHTS

397 15. Except as provided in subdivision (b) of Article 3, the exercise of existing water rights
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398 by the Service, or its acquisition of additional water or water rights from other than the United States,

399 shall not alter the obligation of Reclamation to provide the maximum quantities of Level 2 Water

400 Supplies and Incremental Level 4 Water Supplies under subdivision (a) of Article 3 of this MOU.
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401 IN WITNESS WHEREOF, the parties hereto have executed this MOU as of the day and year

402 first above written.

403 By: /s/ Lester Snow 

404 APPROVED AS LEGAL Regional Director, Mid-Pacific Region

405 FORM AND SUFFICIENCY Bureau of Reclamation

406 /s/ James E. Turner

407 OFFICE OF REGIONAL SOLICITOR

408 DEPARTMENT OF THE INTERIOR

409 By: /s/ Michael J. Spear 

410 Manager, California, Nevada Operations Office

411 U.S. Fish and Wildlife Service