R.O. Draft 11/14-2000

 Contract No.

01-WC-20-1755

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

Central Valley Project, California

 CONTRACT BETWEEN THE UNITED STATES

AND

STATE OF CALIFORNIA

 FOR WATER SUPPLY

TO

 GRAY LODGE WILDLIFE AREA

Table of Contents

Article No. Page No.

Preamble 1

Explanatory Recitals 2-3

 1 Definitions 3-7

 2 Term of Contract 7

 3 Water to be Made Available and

 Delivered to the Contractor 7-10

 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 13-14

 7 Transfers, Reallocations or Exchanges of Water 14

 8 Temporary Reductions–Return Flows 14-15

 9 Water Shortage and Apportionment 15-16

 10 Rules and Regulations 16

 11 Water and Air Pollution Control 16

 12 Quality of Water 16-17

 13 Use of Non–Project Facilities for Water Delivery 17-18

 14 Opinions and Determinations 18

 15 Equal Opportunity 19-20

 16 Compliance with Civil Rights Laws and Regulations 20

 17 Water Conservation 21-23

 18 Existing or Acquired Water or Water Rights 23
 19 Contingent on Appropriation or Allotment of Funds 23-24

 20 Books, Records, and Reports 24

Article No. Page No.

 21 Assignment Limited–Successors and Assigns Obligated 24-25

 22 Liability 25

 23 Officials Not to Benefit 25

 24 Certification of Nonsegregated Facilities 25-26

 25 Federal Laws 26

 26 Notices 26-27

 Signature Page 28

Exhibit A

Exhibit B
1 R.O. Draft 11/14-2000

2 Contract No.

3 01-WC-20-1755

4 UNITED STATES

5 DEPARTMENT OF THE INTERIOR

6 BUREAU OF RECLAMATION

7 Central Valley Project, California

8 CONTRACT BETWEEN THE UNITED STATES

9 AND

10 STATE OF CALIFORNIA

11 FOR WATER SUPPLY

12 TO

13 GRAY LODGE WILDLIFE AREA

14 THIS CONTRACT, made this 19 day of January , 2001 , in pursuance

15 generally of the Act of June 17, 1902 (32 Stat. 388) as amended and supplemented; the Act of August

16 27, 1954 (68 Stat. 879), as amended by the Act of November 8, 1978 (92 Stat. 3110, the Act of

17 October 27, 1986 (100 Stat. 3050), and in particular Section 3406(d) of the Central Valley Project

18 Improvement Act (CVPIA), Title XXXIV of the Act of October 30, 1992 (106 Stat. 4706) all

19 collectively hereinafter referred to as Federal Reclamation law, between THE UNITED STATES OF

20 AMERICA, represented by the Secretary of the Interior’s duly authorized representative acting

21 pursuant to this Contract, hereinafter referred to as the Contracting Officer, and the State of California,

22 represented by the California Department of Fish and Game, hereinafter referred to as the Contractor,

23 a public agency of the State of California, duly organized, existing, and acting pursuant to the laws

24 thereof, with its principal place of business in Sacramento, California;

25 WITNESSETH, That:
2

26 EXPLANATORY RECITALS

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

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

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

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

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

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

33 control, and navigation; and 

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

35 300,000 acres and these remaining wetlands provide critical wildlife habitat and other environmental

36 benefits, and important recreational and educational opportunities; and

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

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

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

40 wildlife and flora.”; and 

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

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

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

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

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

46 WHEREAS, the directives of Section 3406(d) of the CVPIA have been carried out
3

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

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

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

50 cooperative and collaborative effort is expected to continue; and

51 WHEREAS, the Contracting Officer intends to use Project facilities, in part, to provide

52 firm water supplies of suitable quality to maintain and improve the Refuges; and 

53 WHEREAS, the Contractor has demonstrated to the satisfaction of the Contracting

54 Officer that the Contractor has fully utilized the Central Valley Project water supplies available to it for

55 reasonable and beneficial use for fish and wildlife preservation and enhancement (wetland management)

56 and/or the Contracting Officer has concluded through the Bureau of Reclamation’s 1989 Refuge Water

57 Supply Report and the San Joaquin Basin Action Plan/Kesterson Mitigation Action Plan Report that

58 the Contractor has projected future demand for water use such that the Contractor has the capability

59 and expects to fully utilize for reasonable and beneficial use the quantity of water to be made available

60 to it pursuant to this Contract; and

61 WHEREAS, the Contracting Officer and the Contractor are willing to execute

62 this Contract pursuant to subsection 3406(d) of the CVPIA on the terms and conditions set forth

63 below;

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

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

66 DEFINITIONS

67 1. When used herein unless otherwise distinctly expressed, or manifestly incompatible
4

68 with the intent of the parties or expressed in this contract, the term:

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

70 dates inclusive;

71 (b) “Contractor’s Boundary” shall mean the Refuge(s) to which the Contractor is

72 permitted to provide Delivered Water under this contract as identified in Exhibit “A”. Exhibit “A” may

73 be revised without amending this Contract upon mutual agreement of the Contractor and the

74 Contracting Officer;

75 (c) “Contracting Officer” shall mean the Secretary of the Interior’s duly authorized

76 representative acting pursuant to this Contract; 

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

78 eventualities exists:

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

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

81 as such forecast is made by the Contracting Officer, on or before February 20, and reviewed as

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

83 or

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

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

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

87 800,000 acre-feet;

88 For the purpose of determining a Critically Dry Year, the computed inflow to
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89 Shasta Lake under present upstream development above Shasta Lake shall be used as the full natural

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

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

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

93 alterations.

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

95 recognized forecasting agencies, the Contracting Officer shall select the forecast to be used and will

96 make the details of it available to the Contractor. The same forecast used by the Contracting Officer for

97 operation of the Project shall be used to make forecasts hereunder.

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

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

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

101 Level 4 Water Supplies diverted by the Contractor pursuant to this Contract at the Point(s) of Delivery

102 in accordance with Article 4(c) of this Contract; 

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

104 (d) of this Article;

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

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

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

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

109 (j) “Level 4 Water Supplies” shall mean the quantities of water referred to in
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110 section 3406 (d)(2) of the CVPIA and depicted in Exhibit “B”of this Contract;

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

112 facilities;

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

114 Water”, acquired, appropriated by, transferred to or assigned to the Contractor or, transferred to the

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

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

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

118 Incremental Level 4 Water Supplies are deemed to be delivered to the Contractor and at which the

119 Contractor shall assume the responsibility for the further control, carriage, handling, use, disposal or

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

121 terms and conditions of this Contract; 

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

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

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

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

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

127 law;

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

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

130 Mendota state wildlife management areas; and the Grassland Resource Conservation District all
7

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

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

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

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

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

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

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

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

139 agency of the Department of the Interior;

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

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

142 TERM OF CONTRACT 

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

144 through February 28, 2026.

145 (b) Upon request by the Contractor, this Contract shall be renewed for successive periods

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

147 The Contractor shall request renewal of the Contract at least two (2) years prior to the date on which

148 this Contract expires.

149 WATER TO BE MADE AVAILABLE AND DELIVERED TO THE CONTRACTOR

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

151 federal law, and subject to the provisions set forth in Articles 8 and 9 of this Contract, the Contracting
8

152 Officer shall, at the Point(s) of Delivery, make available and/or convey to the Contractor the maximum

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

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

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

156 Water Supplies made available and/or conveyed to the Contractor shall be scheduled in accordance

157 with the provisions of Article 4 of this Contract; Provided, that in light of the fact that, Section

158 3406(d)(2) of the CVPIA provides that the Incremental Level 4 Water Supplies shall be acquired in

159 cooperation with the State of California and in consultation with the Central Valley Habitat Joint

160 Venture and other interests in cumulating increments of not less than ten percent per annum, from the

161 date the CVPIA was enacted, through voluntary measures which include, but are not limited to, water

162 conservation, conjunctive use, purchase, lease, donations, or similar activities, or a combination of such

163 activities which do not require involuntary reallocation of Project yield, water being provided as all or

164 part of the Incremental Level 4 Water Supplies for each of the Refuges can be made available only to

165 the extent that the Contracting Officer is able to acquire the Incremental Level 4 Water Supplies from

166 willing sources; Accordingly, the Contracting Officer shall use his/her best efforts to acquire the

167 Incremental Level 4 Water Supplies and shall coordinate acquisitions of Level 4 Water Supplies with

168 acquisitions of Environmental Water Account (EWA) water pursuant to the Operating Principles

169 Agreement, dated August 28, 2000 attached to the Record of Decision for the CALFED Bay-Delta

170 Program, dated August 28, 2000 and/or other acquisitions of water for environmental purposes to

171 ensure that acquisitions of Incremental Level 4 Water Supplies have a priority at least equal to

172 acquisitions of EWA and/or other environmental water each Year. The Contracting Officer also agrees
9

173 that the Interagency Refuge Management Team, created pursuant to Article 6 of this Contract, shall be

174 included among the interests consulted in acquiring Incremental Level 4 Water Supplies. 

175 (b) The Contractor shall continue use of the Non-Project Water component of the Level 2

176 Water Supplies set forth in Exhibit “B” as long as such Non-Project Water remains available to the

177 Contractor and is of suitable quality. In the event that such water supply is unavailable to the

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

179 Contract, the Contracting Officer shall deliver to the Contractor sufficient substitute Project Water to

180 ensure that the quantities of Level 2 Water Supplies are available to the Contractor in accordance with

181 subdivision (a) of this Article. 

182 (c) The Contractor shall comply with requirements applicable to the Contractor in

183 biological opinion(s) prepared as a result of a consultation regarding the execution of this Contract

184 undertaken pursuant to Section 7 of the Endangered Species Act of 1973, as amended, that are within

185 the Contractor’s legal authority to implement. The Contractor shall comply with the limitations or

186 requirements imposed by environmental documentation applicable to the Contractor and within its legal

187 authority to implement. Nothing herein shall be construed to prevent the Contractor from challenging or

188 seeking judicial relief in a court of competent jurisdiction with respect to any Biological Opinion or other

189 environmental documentation referred to in this Article. 

190 (d) The Contractor shall make reasonable and beneficial use of all Delivered

191 Water furnished pursuant to this Contract consistent with the wetland habitat water management plan(s)

192 described in Article 17 of this Contract. 

193 (e) In order to maximize water available to Refuges and better manage such water,
10

194 the Contractor may request the Contracting Officer’s permission to reschedule a portion of the Level 2

195 Water Supplies and/or a portion of the Incremental Level 4 Water Supplies made available to the

196 Contractor for use within the Contractor’s Boundary during the current Year for use within the

197 subsequent Year. The Contracting Officer may permit such rescheduling in accordance with applicable

198 law, and the then-current applicable rescheduling guidelines and policies. Upon execution of this

199 Contract, the Contracting Officer shall have adopted amendments to any applicable rescheduling

200 guidelines and policies to provide for the rescheduling of refuge water in accordance with this Article. 

201 After execution of this Contract and annually thereafter, the Contracting Officer shall provide the

202 Contractor with a copy of the then-current rescheduling guidelines and policies.

203 (f) The Contracting Officer shall not interfere with the Contractor's right pursuant

204 to Federal Reclamation law and applicable California law to the beneficial use of water furnished

205 pursuant to this Contract so long as the Contractor fulfills all of its obligations under this Contract. A

206 reduction in water supplies pursuant to Article 9 of this Contract shall not be deemed to constitute such

207 interference.

208 TIME FOR DELIVERY OF WATER

209 4. (a) On or about February 20 of each Calendar Year, the Contracting Officer shall

210 provide the Contractor, in writing, with a preliminary forecast of whether the upcoming Year will be a

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

212 to be made available to the Contractor during the upcoming Year are to be shorted pursuant to Article

213 9 of this Contract; and the amount of Incremental Level 4 Water Supplies estimated to be made

214 available to the Contractor pursuant to this Contract for the upcoming Year. The forecast will be
11

215 updated monthly, as necessary, based on then-current hydrologic conditions. Upon the request of the

216 Contractor, the Contracting Officer shall make available to the Contractor the data on which the

217 Contracting Officer relied to determine whether the Year in question will or will not be a Critically Dry

218 Year and to determine the amounts of Level 2 Water Supplies and Incremental Level 4 Water Supplies

219 to be made available to the Contractor pursuant to this Contract during a Critically Dry Year.

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

221 March 1 of each Calendar Year, the Contractor shall submit to the Contracting Officer a written

222 schedule, satisfactory to the Contracting Officer, showing both the monthly and annual quantities of

223 Level 2 Water Supplies and Incremental Level 4 Water Supplies to be delivered by the Contracting

224 Officer to each of the Refuges pursuant to this Contract. Each schedule shall be updated on a monthly

225 basis to reflect actual use and remaining estimated needs. 

226 (c) In accordance with subdivision (a) of Article 3 of this Contract, the Contracting Officer

227 shall make available and/or convey Level 2 Water Supplies and Incremental Level 4 Water Supplies

228 for diversion by the Contractor at the Points of Delivery in accordance with the schedule submitted by

229 the Contractor pursuant to subdivision (b) of this Article, or any written revision(s) thereto, mutually

230 agreed to by the Contracting Officer and the Contractor which are submitted to the Contracting Officer

231 within a reasonable time prior to the date(s) on which the requested change(s) is/are to be implemented.

232 POINT OF DIVERSION, MEASUREMENT AND RESPONSIBILITY FOR DISTRIBUTION 

233 OF WATER

234 5. (a) The original Point(s) of Delivery shall be established by written mutual
12

235 agreement of the Contractor and the Contracting Officer. Such Point(s) of Delivery may be revised

236 without amending this Contract upon written mutual agreement of the Contracting Officer and the

237 Contractor.

238 (b) All water delivered to the Contractor pursuant to this Contract is to be

239 measured at the Point(s) of Delivery to reflect the quantities of Level 2 Water Supplies and Incremental

240 Level 4 Water Supplies delivered to the Contractor’s Boundary. Upon the request of the Contractor or

241 on the Contracting Officer’s own initiative, the Contracting Officer shall investigate the accuracy of such

242 measurements and the parties will jointly take any necessary steps to adjust any errors appearing

243 therein. For any period of time when accurate measurement has not been made, the Contracting

244 Officer shall consult with the Contractor prior to making a determination of the quantity of Delivered

245 Water for that period of time. The Contractor shall advise the Contracting Officer on or before the 10th

246 calendar day of each month of the quantities of Level 2 Water Supplies and Incremental Level 4 Water

247 Supplies taken during the preceding month at the Point(s) of Delivery.

248 (c) The Contracting Officer shall not be responsible for the control, carriage,

249 handling, use, disposal, or distribution of water delivered to the Contractor pursuant to this Contract

250 beyond the Point(s) of Delivery specified in subdivision (a) of this Article. 

251 POOLING OF WATER SUPPLIES

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

253 Incremental Level 4 Water Supplies depicted in Exhibit “B” are reduced pursuant to Article 9 of this
13

254 Contract, the remaining Level 2 Water Supplies and/or the Incremental Level 4 Water Supplies may be

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

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

257 this Contract; or be reduced by more than twenty-five (25) percent; Provided further, that the

258 Contracting Officer makes a written determination that pooling of water for use on other Refuge(s)

259 would not have an adverse impact, that cannot be reasonably mitigated, on Project operations, other

260 Project Contractors, or other Project purposes; Provided further, that the Contracting Officer

261 determines that such reallocation is permitted under the terms and conditions of the applicable

262 underlying water right permit and/or license; and Provided still further, that water made available under

263 this contract may not be scheduled for delivery outside the Contractor’s Boundary without prior

264 written approval of the Contracting Officer.

265 (b) An Interagency Refuge Water Management Team, to be chaired by the Contracting

266 Officer and to be established upon execution of this Contract, shall be entitled to collaboratively

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

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

269 Article is intended to require the Contractor to pool the water supply provided for in this Contract. The

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

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

272 and the Grassland Water District.

273 TRANSFERS, REALLOCATIONS OR EXCHANGES OF WATER 

274 7. Subject to the prior written approval of the Contracting Officer, the Project Water made
14

275 available under this Contract may be transferred, reallocated or exchanged in that Year to other

276 Refuge(s) or Project contractors if such transfer, reallocation or exchange is requested by the

277 Contractor and is authorized by applicable Federal and California State laws, and then-current

278 applicable guidelines or regulations.

279 TEMPORARY REDUCTIONS--RETURN FLOWS

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

281 requirements of Federal law, the Contracting Officer shall make all reasonable efforts to optimize water

282 deliveries to the Contractor as provided in this Contract.

283 (b) The quantity of water to be delivered to the Contractor as herein provided may

284 be temporarily discontinued or reduced when investigation, inspection, maintenance, repair, or

285 replacement of any of the Project facilities and/or Non-Project Facilities or any part thereof necessary

286 for the delivery of water to the Contractor is required. The Contracting Officer shall give and/or arrange

287 to have the owner/operator of Non-Project Facilities give the Contractor due written notice in advance

288 of such temporary discontinuance or reduction, except in case of an emergency, when no advance

289 notice is possible, in which case the Contracting Officer shall notify and/or arrange to have the

290 owner/operator of the Non-Project Facilities notify the Contractor of said discontinuance or reduction

291 as soon as is feasible; Provided, that the Contracting Officer shall use its best efforts to avoid any

292 discontinuance or reduction in such service. Upon resumption of service after such reduction or

293 discontinuance, and if requested by the Contractor, the Contracting Officer will make all reasonable

294 efforts, consistent with other obligations and operational constraints, to deliver the quantity of water

295 which would have been delivered hereunder in the absence of such discontinuance or reduction.
15

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

297 derived from Delivered Water which escapes or is discharged beyond the Contractor’s Boundary; 

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

299 flow being put to beneficial use pursuant to this contract within the Contractor’s Boundary by the

300 Contractor or those claiming by, through, or under the Contractor.

301 WATER SHORTAGE AND APPORTIONMENT

302 9. (a) In a Critically Dry Year, the Contracting Officer may temporarily reduce, for

303 that Year, the availability of Level 2 Water Supplies up to twenty-five (25) percent of the maximum

304 quantities set forth in Exhibit “B” whenever reductions due to Hydrologic Circumstances are imposed

305 upon agricultural deliveries of Project Water; Provided, that such reductions shall not exceed in

306 percentage terms the reductions imposed on agricultural service contractors. The quantity of Non307 Project Water available to one or more of the Refuges as part of its/their Level 2 Water Supplies may

308 be reduced by more than twenty-five (25) percent in Years when the quantity of Project Water made

309 available to the Contractor can be reduced by no more than twenty-five (25) percent. In such cases,

310 the Contracting Officer shall make up the supply difference with water supplies provided by the

311 Contracting Officer to ensure that Level 2 Water Supplies from all sources are not reduced by more

312 than twenty-five (25) percent.

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

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

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

316 imposed in accordance with the priority or priorities that were applied to such Non-Project Water and
16

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

318 Supplies.

319 RULES AND REGULATIONS

320 10. The parties agree that the delivery of water pursuant to this Contract is subject to

321 Federal Reclamation law, as may be amended and supplemented, as applicable, and the rules and

322 regulations promulgated by the Secretary of the Interior under Federal Reclamation law. 

323 WATER AND AIR POLLUTION CONTROL

324 11. The Contractor, in carrying out this contract, shall comply with all applicable water and

325 air pollution laws and regulations of the United States and the State of California, and shall obtain all

326 required permits or licenses from the appropriate Federal, State, or local authorities.

327 QUALITY OF WATER

328 12. (a) Consistent with other legal obligations, the water delivered by the Contracting

329 Officer to the Contractor pursuant to this Contract shall be of suitable quality to maintain and improve

330 wetland habitat areas and of comparable quality to water provided to other Project purposes within the

331 same geographical areas; Provided, that the Contracting Officer is under no obligation to construct or

332 furnish water treatment facilities to maintain or to improve the quality of the water furnished to the

333 Contractor pursuant to this contract. The quality of Delivered Water may be monitored by the

334 Contractor at the Point(s) of Delivery on an as needed basis. Should the Contracting Officer, in

335 consultation with the Contractor, determine that the Level 2 Water Supplies and/or the Level 4 Water

336 Supplies to be made available to the Contractor pursuant to this Contract during all or any part of a

337 Year will not be of the quality that the Contractor feels is suitable to maintain and improve wetland

338 habitat areas, the Contractor and the Contracting Officer shall meet within 48 hours or at a time
17

339 mutually agreeable to the parties and determine the appropriate actions necessary to identify and

340 address the source of the water quality problems. 

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

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

343 highest level reasonably attainable as determined by the Contracting Officer. The Contractor shall be

344 responsible for compliance with all State of California and Federal water quality standards and

345 directives applicable to surface return flows and subsurface agricultural drainage discharges generated

346 within its boundaries arising from water conveyed to the Refuges pursuant to this Contract. This

347 Contract does not create any obligation on the Contracting Officer to provide drainage services.

348 USE OF NON-PROJECT FACILITIES FOR WATER DELIVERY

349 13. Any use of Non-Project Facilities, including use of State Water Project facilities pursuant

350 to Joint Point of Diversion or other use of State Water Project facilities to deliver the water supplies

351 provided for in the Contract, or any agreement for the use of such Non-Project Facilities, shall in no

352 way alter the obligation of the Contracting Officer to make available and deliver water supplies in

353 accordance with all of the terms and conditions of this Contract. In addition, any costs incurred in the

354 use of Non-Project Facilities to deliver water supplies pursuant to this Contract shall be paid for in

355 accordance with Section 3406(d)(3) of the CVPIA.

356 OPINIONS AND DETERMINATIONS

357 14. (a) Where the terms of this Contract provide for actions to be based upon the

358 opinion or determination of either party to this Contract, said terms shall not be construed as permitting

359 such action to be predicated upon opinions or determinations that are arbitrary, capricious or
18

360 unreasonable. Both parties, notwithstanding any other provisions of this Contract, expressly reserve the

361 right to seek relief from and appropriate adjustment for any such arbitrary, capricious, or unreasonable

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

363 manner. Nothing in this subdivision of this Article is intended to or shall affect or alter the standard of

364 judicial review applicable under federal law to any opinion or determination implementing a specific

365 provision of federal law embodied in statute or regulation.

366 (b) Both parties to this Contract shall have the right to make determinations

367 necessary to administer this Contract that are consistent with the provisions of this Contract, the laws of

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

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

370 reasonably practicable.

371 EQUAL OPPORTUNITY

372 15. During the performance of this contract, the Contractor agrees as follows:

373 (a) The Contractor will not discriminate against any employee or applicant for

374 employment because of race, color, religion, sex, or national origin. The Contractor will take

375 affirmative action to ensure that applicants are employed, and that employees are treated during

376 employment, without regard to their race, color, religion, sex, or national origin. Such action shall

377 include, but not be limited to, the following: Employment, upgrading, demotion, or transfer; recruitment

378 or recruitment advertising; layoff or termination, rates of payment or other forms of compensation; and

379 selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places,

380 available to employees and applicants for employment, notices to be provided by the Contracting

381 Officer setting forth the provisions of this nondiscrimination clause.

382 (b) The Contractor will, in all solicitations or advertisements for employees placed
19

383 by or on behalf of the Contractor, state that all qualified applicants will receive consideration for

384 employment without discrimination because of race, color, religion, sex, or national origin.

385 (c) The Contractor will send to each labor union or representative of workers with

386 which it has a collective bargaining agreement or other contract or understanding, a notice, to be

387 provided by the Contracting Officer, advising the said labor union or workers' representative of the

388 Contractor's commitments under Section 202 of Executive Order 11246 of September 24, 1965, and

389 shall post copies of the notice in conspicuous places available to employees and applicants for

390 employment.

391 (d) The Contractor will comply with all provisions of Executive Order No. 11246

392 of September 24, 1965, as amended, and of the rules, regulations, and relevant orders of the Secretary

393 of Labor.

394 (e) The Contractor will furnish all information and reports required by said

395 amended Executive Order and by the rules, regulations, and orders of the Secretary of Labor, or

396 pursuant thereto, and will permit access to its books, records, and accounts by the Contracting Officer

397 and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules,

398 regulations, and orders.

399 (f) In the event of the Contractor's noncompliance with the nondiscrimination

400 clauses of this contract or with any of the said rules, regulations, or orders, this contract may be

401 canceled, terminated, or suspended, in whole or in part, and the Contractor may be declared ineligible

402 for further Government contracts in accordance with procedures authorized in said amended Executive

403 Order, and such other sanctions may be imposed and remedies invoked as provided in said Executive

404 Order, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

405 (g) The Contractor will include the provisions of paragraphs (a) through (g) in

406 every subcontract or purchase order unless exempted by the rules, regulations, or orders of the

407 Secretary of Labor issued pursuant to Section 204 of said amended Executive Order, so that such

408 provisions will be binding upon each subcontractor or vendor. The Contractor will take such action

409 with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a

410 means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in

411 the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or

412 vendor as a result of such direction, the Contractor may request the United States to enter into such

413 litigation to protect the interests of the United States.

414 COMPLIANCE WITH CIVIL RIGHTS LAWS

415 AND REGULATIONS

416 16. (a) The Contractor shall comply with Title VI of the Civil Rights Act of 1964 (42
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417 U.S.C. 2000d), Section 504 of the Rehabilitation Act of 1975 (P.L. 93-112, as amended), the Age

418 Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other applicable civil rights laws, as well

419 as with their respective implementing regulations and guidelines imposed by the U.S. Department of the

420 Interior and/or Bureau of Reclamation.

421 (b) These statutes require that no person in the United States shall, on the grounds

422 of race, color, national origin, handicap, or age, be excluded from participation in, be denied the

423 benefits of, or be otherwise subjected to discrimination under any program or activity receiving financial

424 assistance from the Bureau of Reclamation. By executing this contract, the Contractor agrees to

425 immediately take any measures necessary to implement this obligation, including permitting officials of

426 the United States to inspect premises, programs, and documents.

427 (c) The Contractor makes this agreement in consideration of and for the purpose of

428 obtaining any and all Federal grants, loans, contracts, property discounts, or other Federal financial

429 assistance extended after the date hereof to the Contractor by the Bureau of Reclamation, including

430 installment payments after such date on account of arrangements for Federal financial assistance which

431 were approved before such date. The Contractor recognizes and agrees that such Federal assistance

432 will be extended in reliance on the representations and agreements made in this Article, and that the

433 United States reserves the right to seek judicial enforcement thereof.

434 WATER CONSERVATION

435 17. (a) The Contractor shall prepare individual refuge wetland habitat water

436 management plan(s) in order to ensure the effective use of water supplies to meet wetland resource

437 needs and to meet the objectives of the Central Valley Habitat Joint Venture and the purposes of the

438 CVPIA to maintain and improve certain Central Valley wetland habitat areas. Criteria to prepare and

439 evaluate refuge wetland habitat water management plan(s) shall be developed by the Interagency

440 Refuge Water Management Team within one (1) year of the execution of this Contract, and reviewed

441 and updated every five (5) years thereafter taking into consideration the provisions of the Interagency

442 Coordinated Program Task Force report dated June 1998. The criteria shall include economically
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443 feasible water management measures which can improve the Contractors’ efficient use of water in a

444 manner appropriate for wetland and wildlife management, and shall also include time schedules for

445 meeting the water use efficiency and conservation objectives. The criteria shall grant substantial

446 deference to on-going state efforts related to wetlands water management and shall take into account

447 the unique requirements associated with water use for the maintenance and enhancement of wetland

448 and wildlife habitat. The Contractor shall make all reasonable efforts, consistent with appropriate

449 limitations recognized in Article 19 of this Contract, to complete the original wetland habitat water

450 management plan(s) within one (1) year of the establishment of the criteria. The Contracting Officer will

451 review and determine if the wetland habitat water management plan(s) meet the established criteria for

452 evaluating said plan within ninety (90) days of receipt of each plan.

453 (b) Prior to the Contractor being afforded opportunities such as pooling

454 and rescheduling of water supplies pursuant to Articles 3 and 6 of this Contract, the Contractor must

455 be implementing a wetland habitat water management plan that has been determined by the Contracting

456 Officer to meet the established criteria developed pursuant to subdivision (a) of this Article for

457 preparing and evaluating said plan. Continued pooling and rescheduling benefits pursuant to Articles 3

458 and 6 of this Contract shall be contingent upon the Contractor’s continued implementation of such

459 wetland habitat water management plans. In the event the Contracting Officer determines the

460 Contractor is unable to implement its wetland habitat water management plan, due to circumstances

461 beyond its control, the pooling and rescheduling benefits of Articles 3 and 6 of this Contract shall be

462 continued so long as the Contractor diligently works with the Contracting Officer to obtain such

463 determination at the earliest practicable date and thereafter the Contractor begins implementing its
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464 wetland habitat water management plan immediately after the circumstances preventing implementation

465 have ceased.

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

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

468 supplies may be transferred/reallocated, under the terms and conditions of this Contract, to other

469 wetland, wildlife and fishery needs or to other Project contractors in accordance with the

470 recommendations of the Interagency Refuge Water Management Team established pursuant to Article

471 6 of this Contract; Provided, that the Contracting Officer makes a written determination that such

472 transfer/reallocation of conserved water would not have an adverse impact, that cannot be reasonably

473 mitigated, on Project operations, other Project contractors or other Project purposes; Provided further,

474 that the transfer/reallocation is requested by the Contractor and the Contracting Officer determines that

475 the transfer/reallocation is authorized by applicable laws, and then-current applicable guidelines and/or

476 regulations.

477 (d) The Contractor shall submit to the Contracting Officer an annual update on the

478 status of its implementation of the wetland habitat water management plan(s) for the previous Water

479 Year.

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

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

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

483 submit such revised plan(s) to the Contracting Officer for review and so the Contracting Officer can

484 determine whether such plan(s) meet the then-current criteria. 
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485 EXISTING OR ACQUIRED WATER OR WATER RIGHTS

486 18. Except as provided in subdivision (b) of Article 3, the exercise of existing water rights by

487 the Contractor, or its acquisition of additional water or water rights from other than the United States,

488 shall not alter the obligation of the Contracting Officer to provide the maximum quantities of Level 2

489 Water Supplies and Incremental Level 4 Water Supplies under subdivision (a) of Article 3 of this

490 Contract. 

491 CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS

492 19. (a) The expenditure or advance of any money or the performance of any obligation

493 of the United States under this contract shall be contingent upon appropriation or allotment of funds. 

494 Absence of appropriation or allotment of funds shall not relieve the Contractor from any obligations

495 under this contract. No liability shall accrue to the United States in case funds are not appropriated or

496 allotted.

497 (b) The expenditure of any funds and the performance of any terms of this contract by the

498 Contractor may require appropriation of funds or the allotment of funds by the State Legislature and

499 shall be contingent upon such appropriation or allotment being made. The failure of the State Legislature

500 to appropriate funds or the absence of any allotment of funds shall not impose any liability on the State

501 of California.

502 BOOKS, RECORDS, AND REPORTS

503 20. (a) The Contractor shall establish and maintain accounts and other books and

504 records pertaining to administration of the terms and conditions of this contract, including: the

505 Contractor's financial transactions, water supply data, and right-of-way agreements; and other matters

506 that the Contracting Officer may require. Reports thereon shall be furnished to the Contracting Officer

507 in such form and on such date or dates as the Contracting Officer may require. Subject to applicable

508 Federal laws and regulations, each party to this contract shall have the right during office hours to

509 examine and make copies of the other party's books and records relating to matters covered by this

510 contract.
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511 (b) Notwithstanding the provisions of subdivision (a) of this Article, no books, records, or

512 other information shall be requested from the Contractor by the Contracting Officer unless such books,

513 records, or information are reasonably related to the administration or performance of this Contract. 

514 Any such request shall allow the Contractor a reasonable period of time within which to provide the

515 requested books, records, or information.

516 ASSIGNMENT LIMITED--SUCCESSORS AND ASSIGNS OBLIGATED

517 21. (a) The provisions of this contract shall apply to and bind the successors and

518 assigns of the parties hereto, but no assignment or transfer of this contract or any right or interest therein

519 shall be valid until approved in writing by the Contracting Officer.

520 (b) The assignment of any right or interest in this contract by either party shall not

521 interfere with the rights or obligations of the other party to this contract absent the written concurrence

522 of said other party.

523 (c) The Contracting Officer shall not unreasonably condition or withhold his/her

524 approval of any proposed assignment.

525 LIABILITY

526 22. (a) The Contractor shall not assert that the United States, its officers, agents and

527 employees are responsible for legal liability for damages of any nature whatsoever arising out of any

528 actions or omissions by the Contractor, its officers, agents and employees in the performance of this

529 Contract.

530 (b) The United States shall not assert that the Contractor, its officers, agents and

531 employees are responsible for legal liability for damages of any nature whatsoever arising out of any

532 actions or omissions by the United States, its officers, agents and employees in the performance of this
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533 Contract. 

534 (c) Within thirty (30) days of receipt by either party of any claim for liability arising

535 from actions within the scope of this Contract, the party receiving the claim shall notify the other party

536 of such claim and provide a copy of the claim to the other party, if it is in written form. Nothing in this

537 Article shall be construed to limit the right of either party to assert such affirmative defenses and file

538 such cross complaints as may be appropriate in relation to any claim affecting the liability of such party.

539 OFFICIALS NOT TO BENEFIT

540 23. No Member of or Delegate to Congress, Resident Commissioner, or official of the

541 Contractor shall benefit from this contract.

542 CERTIFICATION OF NONSEGREGATED FACILITIES

543 24. The Contractor hereby certifies that it does not maintain or provide for its employees

544 any segregated facilities at any of its establishments, and that it does not permit its employees to

545 perform their services at any location, under its control, where segregated facilities are maintained. It

546 certifies further that it will not maintain or provide for its employees any segregated facilities at any of its

547 establishments, and that it will not permit its employees to perform their services at any location, under

548 its control, where segregated facilities are maintained. The Contractor agrees that a breach of this

549 certification is a violation of the Equal Opportunity clause in this contract. As used in this certification,

550 the term "segregated facilities" means any waiting rooms, work areas, restrooms, and washrooms,

551 restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas,

552 parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities

553 provided for employees which are segregated by explicit directive or are in fact segregated on the basis

554 of race, creed, color, or national origin, because of habit, local custom, or otherwise. The Contractor

555 further agrees that (except where it has obtained identical certifications from proposed subcontractors

556 for specific time periods) it will obtain identical certifications from proposed subcontractors prior to the

557 award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal

558 Opportunity clause; that it will retain such certifications in its files; and that it will forward the following

559 notice to such proposed subcontractors (except where the proposed subcontractors have submitted

560 identical certifications for specific periods):

561 FEDERAL LAWS

562 25. By entering into this Contract, the Contractor does not waive its rights to contest the
26

563 validity or application of, or compliance with, any federal law or regulation in connection with the

564 performance of the terms and conditions of this Contract , nor does the Contractor waive any rights it

565 may have to seek enforcement of obligations of the Secretary to provide water supplies to the

566 Contractor under federal law independent of this Contract; Provided, that the Contractor agrees to

567 comply with the terms and conditions of this Contract unless and until relief from or compliance with

568 application of such Federal law or regulation to the implementing provision of the Contract is granted by

569 a court of competent jurisdiction.

570 NOTICES

571 26. Any notice, demand, or request authorized or required by this contract shall be deemed

572 to have been given, on behalf of the Contractor, when mailed, postage prepaid, or delivered to the

573 Area Manager, Bureau of Reclamation, North-Central Area Office, 16349 Shasta Dam Boulevard,

574 Shasta Lake CA 96019-8400, and on behalf of the United States, when mailed, postage prepaid, or

575 delivered to the California Department of Fish and Game, Legal Affairs Division, 1416 Ninth Street,

12th 576 Floor, Sacramento, CA 95814. The designation of the addressee or the address may be changed

577 by notice given in the same manner as provided in this Article for other notices.
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578 IN WITNESS WHEREOF, the parties hereto have executed this contract as of the day and

579 year first above written.

580 THE UNITED STATES OF AMERICA

581 By: /s/ Lester Snow 

582 Regional Director, Mid-Pacific Region

583 APPROVED AS TO LEGAL Bureau of Reclamation

584 FORM AND SUFFICIENCY

585 /s/ James E. Turner

586 (SEAL) CALIFORNIA DEPARTMENT OF FISH & GAME

587 OFFICE OF REGIONAL SOLICITOR

588 DEPARTMENT OF THE INTERIOR

589 By: /s/ Robert C. Hight 

590 Director