R.O. Draft 11/15-2000

 Contract No.

01-WC-20-1758

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

UNITS OF THE NATIONAL WILDLIFE REFUGE SYSTEM 

IN THE SAN JOAQUIN VALLEY 

AND

THE NATIONAL WILDLIFE REFUGES

IN THE TULARE LAKE BASIN

OF

CALIFORNIA

Table of Contents

Article No. Page No.

Preamble 1

Explanatory Recitals 1-3

 1 Definitions 4-7

 2 Term of Contract 7

 3 Water to be Made Available and

 Delivered to the Contractor 8-10

 4 Time for Delivery of Water 10-11

 5 Point of Diversion, Measurement and Responsibility for

 Distribution of Water 12

 6 Pooling of Water Supplies 12-13

 7 Transfers, Reallocations or Exchanges of Water 13-14

 8 Temporary Reductions–Return Flows 14-15

 9 Water Shortage and Apportionment 15-16

 10 Rules and Regulations 16

 11 Quality of Water 16-17

 12 Use of Non-Project Facilities for Water Delivery 17

 13 Opinions and Determinations 17-18

 14 Water Conservation 18-20

 15 Existing or Acquired Water Rights 20-21

 Signature Page 22

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

2 Contract. No.

3 01-WC-20-1758

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 UNITS OF THE NATIONAL WILDLIFE REFUGE SYSTEM 

12 IN THE SAN JOAQUIN VALLEY 

13 AND

14 THE NATIONAL WILDLIFE REFUGES

15 IN THE TULARE LAKE BASIN

16 OF

17 CALIFORNIA

18

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

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

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

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

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

24 575 (CVPIA) which states, in pertinent part,”... the Secretary shall provide, either directly or through

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

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

27 of California; ...”

28 EXPLANATORY RECITALS

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

30 Project, California (Project), for diversion, storage, carriage, and distribution of the waters of the
2

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

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

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

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

35 control, and navigation; and 

36 WHEREAS, Reclamation and the Service are entering into this long-term MOU pursuant to

37 Section 3406(d) of the CVPIA to make available and convey water supplies pursuant to this MOU for

38 lands of the National Wildlife Refuge (NWR) System in the San Joaquin Valley, which include: Units of

39 the San Luis NWR, San Luis, Kesterson, West Bear Creek (formerly West Gallo), Freitas, and East

40 Bear Creek (formerly East Gallo), Merced NWR; and in the Tulare Lake Basin which includes Kern

41 NWR and Pixley NWR; and WHEREAS, the wetlands of the Central Valley have declined

42 to approximately 300,000 acres and these remaining wetlands provide critical wildlife habitat and other

43 environmental benefits, and important recreational and educational opportunities; and

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

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

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

47 wildlife and flora.”; and 

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

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

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

51 in furtherance of the objectives of the Central Valley Habitat Joint Venture and the Central Valley
3

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

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

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

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

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

57 cooperative and collaborative effort is expected to continue; and

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

59 supplies of suitable quality to maintain and improve the Refuges; and 

60 WHEREAS, the Service has demonstrated to the satisfaction of Reclamation that the

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

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

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

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

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

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

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

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

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

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

71 DEFINITIONS
4

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

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

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

75 dates inclusive;

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

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

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

79 (c) Omitted

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

81 eventualities exists:

82 (1) The forecasted full natural inflow to Shasta Lake for the current water

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

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

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

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

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

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

89 800,000 acre-feet;

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

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

92 inflow to Shasta Lake. In the event that major construction completed above Shasta Lake materially
5

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

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

95 alterations.

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

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

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

99 Project shall be used to make forecasts hereunder.

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

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

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

103 Level 4 Water Supplies diverted by the Service pursuant to this MOU at the Point(s) of Delivery in

104 accordance with Article 4(c) of this MOU; 

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

106 (d) of this Article;

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

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

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

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

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

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

113 (k) “Non-Project Facilities” shall mean any non-Project water conveyance or
6

114 storage facilities;

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

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

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

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

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

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

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

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

123 terms and conditions of this MOU; 

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

125 and managed by the Department of the Interior, Bureau of Reclamation;

126 (o) “Project Water” shall mean all water that is developed, diverted, stored, or

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

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

129 law;

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

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

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

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

134 Plan/Kesterson Mitigation Action Plan Report prepared by the Bureau of Reclamation as set forth in
7

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

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

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

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

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

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

141 agency of the Department of the Interior;

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

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

144 TERM OF MOU 

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

146 through February 28, 2026.

147 (b) Upon request by the Service, this MOU shall be renewed for successive periods of

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

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

150 expires.

151 WATER TO BE MADE AVAILABLE AND DELIVERED TO THE SERVICE

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

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

154 make available at the established Point(s) of Delivery, and/or convey to the Service the maximum
8

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

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

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

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

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

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

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

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

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

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

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

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

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

168 shall use its best efforts to acquire the Incremental Level 4 Water Supplies and shall coordinate

169 acquisitions of Level 4 Water Supplies with acquisitions of Environmental Water Account (EWA)

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

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

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

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

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

175 of this Contract, shall be included among the interests consulted in acquiring Incremental Level 4 Water
9

176 Supplies. 

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

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

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

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

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

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

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

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

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

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

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

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

189 described in Article 14 of this MOU. 

190 (e) In order to maximize water available to Refuges and better manage such water,

191 the Service may request Reclamation’s permission to reschedule a portion of the Level 2 Water

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

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

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

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

196 adopted amendments to any applicable rescheduling guidelines and policies to provide for the
10

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

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

199 guidelines and policies.

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

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

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

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

204 TIME FOR DELIVERY OF WATER

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

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

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

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

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

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

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

212 available to the Service the data on which Reclamation relied to determine whether the Year in question

213 will or will not be a Critically Dry Year and to determine the amounts of Level 2 Water Supplies and

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

215 Critically Dry Year.

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

217 before March 1 of each Calendar Year, the Service shall submit to Reclamation a written schedule,
11

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

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

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

221 remaining estimated needs.

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

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

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

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

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

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

228 POINT OF DIVERSION, MEASUREMENT AND RESPONSIBILITY FOR DISTRIBUTION 

229 OF WATER

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

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

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

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

234 the Point(s) of Delivery to reflect the quantities of Level 2 Water Supplies and Incremental Level 4

235 Water Supplies delivered to the Service’s Boundary. Upon the request of the Service or on

236 Reclamation’s own initiative, Reclamation shall investigate the accuracy of such measurements and the
12

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

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

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

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

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

242 Point(s) of Delivery.

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

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

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

246 POOLING OF WATER SUPPLIES

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

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

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

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

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

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

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

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

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

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

257 and Provided still further, that water made available under this MOU may not be scheduled for
13

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

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

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

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

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

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

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

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

266 and the Grassland Water District.

267 TRANSFERS, REALLOCATIONS OR EXCHANGES OF WATER 

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

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

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

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

272 regulations.

273 TEMPORARY REDUCTIONS--RETURN FLOWS

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

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

276 to the Service as provided in this MOU.

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

278 temporarily discontinued or reduced when investigation, inspection, maintenance, repair, or replacement
14

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

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

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

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

283 possible, in which case Reclamation shall notify and/or arrange to have the owner/operator of the Non284 Project Facilities notify the Service of said discontinuance or reduction as soon as is feasible; Provided,

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

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

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

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

289 of such discontinuance or reduction.

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

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

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

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

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

295 WATER SHORTAGE AND APPORTIONMENT

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

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

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

299 agricultural deliveries of Project Water; Provided, that such reductions shall not exceed in percentage
15

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

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

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

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

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

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

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

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

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

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

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

311 Supplies.

312 RULES AND REGULATIONS

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

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

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

316 QUALITY OF WATER

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

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

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

320 geographical areas; Provided, that Reclamation is under no obligation to construct or furnish water
16

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

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

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

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

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

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

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

328 and address the source of the water quality problems.

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

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

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

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

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

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

335 obligation on Reclamation to provide drainage services.

336 USE OF NON-PROJECT FACILITIES FOR WATER DELIVERY

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

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

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

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

341 with all of the terms and conditions of this MOU. In addition, any costs incurred in the use of Non-
17

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

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

344 OPINIONS AND DETERMINATIONS

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

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

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

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

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

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

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

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

353 federal law embodied in statute or regulation.

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

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

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

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

358 reasonably practicable.

359 WATER CONSERVATION

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

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

362 meet the objectives of the Central Valley Habitat Joint Venture and the purposes of the CVPIA to
18

363 maintain and improve certain Central Valley wetland habitat areas. Criteria to prepare and evaluate

364 refuge wetland habitat water management plan(s) shall be developed by the Interagency Refuge Water

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

383 management plans. In the event Reclamation determines the Service is unable to implement its wetland
19

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

385 6 of this MOU shall be continued so long as the Service diligently works with Reclamation to obtain

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

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

388 have ceased.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

404 submit such revised plan(s) to Reclamation for review and so Reclamation can determine whether such
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405 plan(s) meet the then-current criteria. 

406 EXISTING OR ACQUIRED WATER OR WATER RIGHTS

407 15. Except as provided in subdivision (b) of Article 3, the exercise of existing water rights

408 by the Service, or its acquisition of additional water or water rights from other than the United States,

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

410 Supplies and Incremental Level 4 Water Supplies under subdivision (a) of Article 3 of this MOU.

411 IN WITNESS WHEREOF, the parties hereto have executed this MOU as of the day and year first

412 above written.

413 By: /s/ Lester Snow 

414 APPROVED AS LEGAL Regional Director, Mid-Pacific Region

415 FORM AND SUFFICIENCY Bureau of Reclamation

416 /s/ James E. Turner

417 OFFICE OF REGIONAL SOLICITOR

418 DEPARTMENT OF THE INTERIOR
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419 By: /s/ Michael J. Spear 

420 Manager, California, Nevada Operations Office

421 U.S. Fish and Wildlife Service