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 Confirm consistency with the LTRC prior to execution of this Contract.

1 UNITED STATES

2 DEPARTMENT OF THE INTERIOR

3 BUREAU OF RECLAMATION

4 Central Valley Project, California

5

6 CONTRACT BETWEEN THE UNITED STATES

7 AND

8 STATE OF CALIFORNIA

9 FOR WATER SUPPLY

10 TO

11 GRAY LODGE WILDLIFE AREA

12 THIS CONTRACT, made this ___ day of ____________________, 20___, in

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

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

15 3110, the Act of October 27, 1986 (100 Stat. 3050), and in particular Section 3406(d) of the

16 Central Valley Project Improvement Act (CVPIA), Title XXXIV of the Act of October 30, 1992

17 (106 Stat. 4706) all collectively hereinafter referred to as Federal Reclamation law, between THE

18 UNITED STATES OF AMERICA, represented by the Secretary of the Interior’s duly authorized

representative acting pursuant to this Contract, hereinafter referred to as the Contracting Officer1 19 ,

20 and the State of California, represented by the California Department of Fish and Game,

21 hereinafter referred to as the Contractor, a public agency of the State of California, duly

22 organized, existing, and acting pursuant to the laws thereof, with its principal place of business in

23 Sacramento, California;
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24 WITNESSETH, That:

25 EXPLANATORY RECITALS

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

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

28 Sacramento River, the American River, the Trinity River, and the San Joaquin River and their

29 tributaries for the following beneficial uses, including, but not limited to, flood control,

30 irrigation, municipal, domestic, industrial water service, the protection, restoration and

31 enhancement of fish, and wildlife, and associated habitats in the Central Valley, the generation

32 and distribution of electric energy, salinity control, and navigation; and 

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

34 300,000 acres and these remaining wetlands provide critical wildlife habitat and other

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

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

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

38 to facilitate proper wetland habitat management for the migratory birds of the Pacific Flyway and

39 resident wildlife and flora.”; and 

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

41 water supplies of suitable quality, through long-term contractual agreements with appropriate

42 parties, to maintain and improve certain wetland habitat areas in the Central Valley

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

44 Valley Project to protect, restore and enhance fish and wildlife and associated habitats; and
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45 WHEREAS, the directives of Section 3406(d) of the CVPIA have been carried

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

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

48 and Game, the Grassland Water District, and the Central Valley Habitat Joint Venture partners;

49 and this cooperative and collaborative effort is expected to continue; and

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

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

52 WHEREAS, the Contractor has demonstrated to the satisfaction of the

53 Contracting Officer that the Contractor has fully utilized the Central Valley Project water

54 supplies available to it for reasonable and beneficial use for fish and wildlife preservation and

55 enhancement (wetland management) and/or the Contracting Officer has concluded through the

56 Bureau of Reclamation’s 1989 Refuge Water Supply Report and the San Joaquin Basin Action

57 Plan/Kesterson Mitigation Action Plan Report that the Contractor has projected future demand

58 for water use such that the Contractor has the capability and expects to fully utilize for reasonable

59 and beneficial use the quantity of water to be made available to it pursuant to this Contract; and

 WHEREAS, the Contracting Officer1 60 and the Contractor are willing to

61 execute this Contract pursuant to subsection 3406(d) of the CVPIA on the terms and conditions

62 set forth below;

63 NOW, THEREFORE, in consideration of the mutual and dependent covenants

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

65 DEFINITIONS
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66 1. When used herein unless otherwise distinctly expressed, or manifestly 

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

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

69 both dates inclusive;

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

71 Contractor is permitted to provide Delivered Water under this contract as identified in Exhibit

72 “A”. Exhibit “A” may be revised without amending this Contract upon mutual agreement of the

73 Contractor and the Contracting Officer;

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

75 authorized representative acting pursuant to this Contract; 

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

77 eventualities exists:

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

79 water year (October 1 of the preceding Calendar Year through September 30 of the current

80 Calendar Year), as such forecast is made by the Contracting Officer, on or before February 20,

81 and reviewed as frequently thereafter as conditions and information warrant, is equal to or less

82 than 3,200,000 acre feet: or

83 (2) The total accumulated actual deficiencies below 4,000,000 acre84 feet in the immediately prior water year or series of successive prior water years, each of which

85 had inflows of less than 4,000,000 acre-feet, together with the forecasted deficiency for the

86 current water year exceed 800,000 acre-feet;
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87 For the purpose of determining a Critically Dry Year, the computed inflow

88 to Shasta Lake under present upstream development above Shasta Lake shall be used as the full

89 natural inflow to Shasta Lake. In the event that major construction completed above Shasta Lake

90 materially alters the present regimen of the stream systems contributing to Shasta Lake, the

91 computed inflow to Shasta Lake used to define a Critically Dry Year will be adjusted to eliminate

92 the effect of such material alterations.

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

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

95 will make the details of it available to the Contractor. The same forecast used by the Contracting

96 Officer for operation of the Project shall be used to make forecasts hereunder.

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

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

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

100 Incremental Level 4 Water Supplies diverted by the Contractor pursuant to this Contract at the

101 Point(s) of Delivery in accordance with Article 4(c) of this Contract; 

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

103 subdivision (d) of this Article;

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

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

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

107 section 3406 (d)(1) of the CVPIA and depicted in Exhibit “B”of this Contract;
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108 (j) “Level 4 Water Supplies” shall mean the quantities of water referred to in

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

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

111 storage facilities;

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

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

114 the United States for delivery to one or more of the Contractor’s Refuges, as identified in Exhibit

115 “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

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

120 disposal or distribution of such water supplies so long as such water supplies are being used in

121 accordance with the terms and conditions of this Contract; 

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

123 States 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

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

127 California law;

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

129 Refuge System in the Central Valley of California; Gray Lodge, Los Banos, Volta, North
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130 Grasslands and Mendota state wildlife management areas; and the Grassland Resource

131 Conservation District all identified in the Refuge Water Supply Report and the land(s) identified

132 in the San Joaquin Basin Action Plan/Kesterson Mitigation Action Plan Report prepared by the

133 Bureau of Reclamation as set forth in Section 3406(d) of the CVPIA and/or as revised in

134 accordance with subdivision (b) of this Article; 

135 (q) “Refuge Water Supply Report” shall mean the report issued by the Mid136 Pacific Region of the Bureau of Reclamation of the United States Department of the Interior

137 entitled “Report on Refuge Water Supply Investigations, Central Valley Hydrologic Basin,

138 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

141 through any 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 CONTRACT 

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

146 through February 28, 2026.

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

148 periods of twenty-five (25) years each, subject to the terms and conditions mutually agreeable to

149 the parties. The Contractor shall request renewal of the Contract at least two (2) years prior to the

150 date on which this Contract expires.

151 WATER TO BE MADE AVAILABLE AND DELIVERED TO THE CONTRACTOR
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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 Contract, the

154 Contracting Officer shall, at the Point(s) of Delivery, make available and/or convey to the

155 Contractor the maximum quantities of Project Water and Non-Project Water, respectively,

156 required to provide each of the Refuges with the Level 2 Water Supplies set forth in Exhibit “B”

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

158 Water Supplies and Incremental Level 4 Water Supplies made available and/or conveyed to the

159 Contractor shall be scheduled in accordance with the provisions of Article 4 of this Contract;

160 Provided, that in light of the fact that, Section 3406(d)(2) of the CVPIA provides that the

161 Incremental Level 4 Water Supplies shall be acquired in cooperation with the State of California

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

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

164 enacted, through voluntary measures which include, but are not limited to, water conservation,

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

166 activities which do not require involuntary reallocation of Project yield, water being provided as

167 all or part of the Incremental Level 4 Water Supplies for each of the Refuges can be made

168 available only to the extent that the Contracting Officer is able to acquire the Incremental Level 4

169 Water Supplies from willing sources; Accordingly, the Contracting Officer shall use his/her best

170 efforts to acquire the Incremental Level 4 Water Supplies and shall coordinate acquisitions of

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

172 pursuant to the Operating Principles Agreement, dated August 28, 2000 attached to the Record of

173 Decision for the CALFED Bay-Delta Program, dated August 28, 2000 and/or other acquisitions
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174 of water for environmental purposes to ensure that acquisitions of Incremental Level 4 Water

175 Supplies have a priority at least equal to acquisitions of EWA and/or other environmental water

176 each Year. The Contracting Officer also agrees that the Interagency Refuge Management Team

177 shall be included among the interests consulted in acquiring Incremental Level 4 Water Supplies. 

178 (b) The Contractor shall continue use of the Non-Project Water component of the

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

180 available to the Contractor and is of suitable quality. In the event that such water supply is

181 unavailable to the Contractor, or is not of suitable quality, subject to the provisions set forth in

182 Articles 8 and 9 of this Contract, the Contracting Officer shall deliver to the Contractor sufficient

183 substitute Project Water to ensure that the quantities of Level 2 Water Supplies are available to

184 the Contractor in accordance with subdivision (a) of this Article. 

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

186 Contractor in biological opinion(s) prepared as a result of a consultation regarding the execution

187 of this Contract undertaken pursuant to Section 7 of the Endangered Species Act of 1973, as

188 amended, that are within the Contractor’s legal authority to implement. The Contractor shall

189 comply with the limitations or requirements imposed by environmental documentation applicable

190 to the Contractor and within its legal authority to implement. Nothing herein shall be construed

191 to prevent the Contractor from challenging or seeking judicial relief in a court of competent

192 jurisdiction with respect to any Biological Opinion or other environmental documentation

193 referred to in this Article. 
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194 (d) The Contractor shall make reasonable and beneficial use of all Delivered

195 Water furnished pursuant to this Contract consistent with the wetland habitat water management

196 plan(s) described in Article 17 of this Contract. 

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

198 water, the Contractor may request the Contracting Officer’s permission to reschedule a portion

199 of the Level 2 Water Supplies and/or a portion of the Incremental Level 4 Water Supplies made

200 available to the Contractor for use within the Contractor’s Boundary during the current Year for

201 use within the subsequent Year. The Contracting Officer may permit such rescheduling in

202 accordance with applicable law, and the then-current applicable rescheduling guidelines and

203 policies. Upon execution of this Contract, the Contracting Officer shall have adopted

204 amendments to any applicable rescheduling guidelines and policies to provide for the

205 rescheduling of refuge water in accordance with this Article. After execution of this Contract

206 and annually thereafter, the Contracting Officer shall provide the Contractor with a copy of the

207 then-current rescheduling guidelines and policies.

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

209 pursuant to Federal Reclamation law and applicable California law to the beneficial use of water

210 furnished pursuant to this Contract so long as the Contractor fulfills all of its obligations under

211 this Contract. A reduction in water supplies pursuant to Article 9 of this Contract shall not be

212 deemed to constitute such interference.

213 TIME FOR DELIVERY OF WATER

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

215 shall provide the Contractor, in writing, with a preliminary forecast of whether the upcoming
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216 Year will be a Critically Dry Year; and, if a Critically Dry Year is forecast, the extent to which

217 Level 2 Water Supplies to be made available to the Contractor during the upcoming Year are to

218 be shorted pursuant to Article 9 of this Contract; and the amount of Incremental Level 4 Water

219 Supplies estimated to be made available to the Contractor pursuant to this Contract for the

220 upcoming Year. The forecast will be updated monthly, as necessary, based on then-current

221 hydrologic conditions. Upon the request of the Contractor, the Contracting Officer shall make

222 available to the Contractor the data on which the Contracting Officer relied to determine whether

223 the Year in question will or will not be a Critically Dry Year and to determine the amounts of

224 Level 2 Water Supplies and Incremental Level 4 Water Supplies to be made available to the

225 Contractor pursuant to this Contract during a Critically Dry Year.

226 

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

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

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

230 of Level 2 Water Supplies and Incremental Level 4 Water Supplies to be delivered by the

231 Contracting Officer to each of the Refuges pursuant to this Contract. Each schedule shall be

232 updated on a monthly basis to reflect actual use and remaining estimated needs. 

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

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

235 Water Supplies for diversion by the Contractor at the Points of Delivery in accordance with the

236 schedule submitted by the Contractor pursuant to subdivision (b) of this Article, or any written

237 revision(s) thereto, mutually agreed to by the Contracting Officer and the Contractor which are
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238 submitted to the Contracting Officer within a reasonable time prior to the date(s) on which the

239 requested change(s) is/are to be implemented.

240 POINT OF DIVERSION, MEASUREMENT AND RESPONSIBILITY FOR DISTRIBUTION 

241 OF WATER

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

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

244 revised without amending this Contract upon written mutual agreement of the Contracting

245 Officer and the Contractor.

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

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

248 Incremental Level 4 Water Supplies delivered to the Contractor’s Boundary. Upon the request of

249 the Contractor or on the Contracting Officer’s own initiative, the Contracting Officer shall

250 investigate the accuracy of such measurements and the parties will jointly take any necessary

251 steps to adjust any errors appearing therein. For any period of time when accurate measurement

252 has not been made, the Contracting Officer shall consult with the Contractor prior to making a

253 determination of the quantity of Delivered Water for that period of time. The Contractor shall

254 advise the Contracting Officer on or before the 10th calendar day of each month of the quantities

255 of Level 2 Water Supplies and Incremental Level 4 Water Supplies taken during the preceding

256 month at the Point(s) of Delivery.
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257 (c) The Contracting Officer shall not be responsible for the control, carriage,

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

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

260 POOLING OF WATER SUPPLIES

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

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

263 this Contract, the remaining Level 2 Water Supplies and/or the Incremental Level 4 Water

264 Supplies may be pooled for use on other Refuge(s); Provided, that no individual Refuge shall

265 receive more Level 2 Water Supplies than would have been made available to it absent a

266 reduction pursuant to Article 9 of this Contract; or be reduced by more than twenty-five (25)

267 percent; Provided further, that the Contracting Officer makes a written determination that pooling

268 of water for use on other Refuge(s) would not have an adverse impact, that cannot be reasonably

269 mitigated, on Project operations, other Project Contractors, or other Project purposes; Provided

270 further, that the Contracting Officer determines that such reallocation is permitted under the

271 terms and conditions of the applicable underlying water right permit and/or license; and

272 Provided still further, that water made available under this contract may not be scheduled for

273 delivery outside the Contractor’s Boundary without prior written approval of the Contracting

274 Officer.

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

276 Contracting Officer and to be established upon execution of this Contract, shall be entitled to

277 collaboratively allocate the pooled water supplies and provide a schedule for delivery of the

278 pooled supplies to meet the highest priority needs of the Refuge(s) as depicted in Exhibit “B”;
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279 Provided, however, nothing in this Article is intended to require the Contractor to pool the water

280 supply provided for in this Contract. The Interagency Refuge Water Management Team shall be

281 composed of designees of the Bureau of Reclamation, the United States Fish and Wildlife

282 Service, the California Department of Fish and Game, and the Grassland Water District.

283 TRANSFERS, REALLOCATIONS OR EXCHANGES OF WATER 

284 7. Subject to the prior written approval of the Contracting Officer, the Project Water

285 made available under this Contract may be transferred, reallocated or exchanged in that Year to

286 other Refuge(s) if such transfer, reallocation or exchange is requested by the Contractor and is

287 authorized by applicable Federal and California State laws, and then-current applicable

288 guidelines or regulations.

289 TEMPORARY REDUCTIONS--RETURN FLOWS

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

291 the requirements of Federal law, the Contracting Officer shall make all reasonable efforts to

292 optimize water deliveries to the Contractor as provided in this Contract.

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

294 may be temporarily discontinued or reduced when investigation, inspection, maintenance, repair,

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

296 necessary for the delivery of water to the Contractor is required. The Contracting Officer shall

297 give and/or arrange to have the owner/operator of Non-Project Facilities give the Contractor due

298 written notice in advance of such temporary discontinuance or reduction, except in case of an

299 emergency, when no advance notice is possible, in which case the Contracting Officer shall
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300 notify and/or arrange to have the owner/operator of the Non-Project Facilities notify the

301 Contractor of said discontinuance or reduction as soon as is feasible; Provided, that the

302 Contracting Officer shall use its best efforts to avoid any discontinuance or reduction in such

303 service. Upon resumption of service after such reduction or discontinuance, and if requested by

304 the Contractor, the Contracting Officer will make all reasonable efforts, consistent with other

305 obligations and operational constraints, to deliver the quantity of water which would have been

306 delivered hereunder in the absence of such discontinuance or reduction.

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

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

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

310 return flow being put to beneficial use pursuant to this contract within the Contractor’s Boundary

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

312 WATER SHORTAGE AND APPORTIONMENT

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

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

315 maximum quantities set forth in Exhibit “B” whenever reductions due to Hydrologic 

316 Circumstances are imposed upon agricultural deliveries of Project Water; Provided, that such

317 reductions shall not exceed in percentage terms the reductions imposed on agricultural service

318 contractors. The quantity of Non-Project Water available to one or more of the Refuges as part of

319 its/their Level 2 Water Supplies may be reduced by more than twenty-five (25) percent in Years

320 when the quantity of Project Water made available to the Contractor can be reduced by no more

321 than twenty-five (25) percent. In such cases, the Contracting Officer shall make up the supply
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322 difference with water supplies provided by the Contracting Officer to ensure that Level 2 Water

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

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

325 individual Refuge(s) pursuant to this Contract, shall be imposed only in a Critically Dry Year.

326 For the Incremental Level 4 Water Supplies provided from Non-Project Water and Project 

327 Water, reductions shall be imposed in accordance with the priority or priorities that were applied

328 to such Non-Project Water and the shortages assigned to Project Water prior to its transfer or

329 acquisition as Incremental Level 4 Water Supplies.

330 RULES AND REGULATIONS

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

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

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

334 WATER AND AIR POLLUTION CONTROL

335 11. The Contractor, in carrying out this contract, shall comply with all applicable

336 water and air pollution laws and regulations of the United States and the State of California, and

337 shall obtain all required permits or licenses from the appropriate Federal, State, or local

338 authorities.

339 QUALITY OF WATER

340

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

342 Contracting Officer to the Contractor pursuant to this Contract shall be of suitable quality to

343 maintain and improve wetland habitat areas and of comparable quality to water provided to other

344 Project purposes within the same geographical areas; Provided, that the Contracting Officer is

345 under no obligation to construct or furnish water treatment facilities to maintain or to improve
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346 the quality of the water furnished to the Contractor pursuant to this contract. The quality of

347 Delivered Water may be monitored by the Contractor at the Point(s) of Delivery on an as needed

348 basis. Should the Contracting Officer, in consultation with the Contractor, determine that the

349 Level 2 Water Supplies and/or the Level 4 Water Supplies to be made available to the Contractor

350 pursuant to this Contract during all or any part of a Year will not be of the quality that the

351 Contractor feels is suitable to maintain and improve wetland habitat areas, the Contractor and the

352 Contracting Officer shall meet within 48 hours or at a time mutually agreeable to the parties and

353 determine the appropriate actions necessary to identify and address the source of the water

354 quality problems. 

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

356 such manner as is practicable to maintain the quality of raw water made available through such

357 facilities at the highest level reasonably attainable as determined by the Contracting Officer. The

358 Contractor shall be responsible for compliance with all State of California and Federal water

359 quality standards and directives applicable to surface return flows arising from water conveyed to

360 the Refuges pursuant to this Contract. This Contract does not create any obligation on the

361 Contracting Officer to provide drainage services.

362 USE OF NON-PROJECT FACILITIES FOR WATER DELIVERY

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

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

365 water supplies provided for in the Contract, or any agreement for the use of such Non-Project

366 Facilities, shall in no way alter the obligation of the Contracting Officer to make available and

367 deliver water supplies in accordance with all of the terms and conditions of this Contract. In
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368 addition, any costs incurred in the use of Non-Project Facilities to deliver water supplies pursuant

369 to this Contract shall be paid for in accordance with Section 3406(d)(3) of the CVPIA.

370 OPINIONS AND DETERMINATIONS

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

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

373 permitting such action to be predicated upon opinions or determinations that are arbitrary,

374 capricious or unreasonable. Both parties, notwithstanding any other provisions of this Contract,

375 expressly reserve the right to seek relief from and appropriate adjustment for any such arbitrary,

376 capricious, or unreasonable opinion or determination. Each opinion or determination by either

377 party shall be provided in a timely manner. Nothing in this subdivision of this Article is intended

378 to or shall affect or alter the standard of judicial review applicable under federal law to any

379 opinion or determination implementing a specific provision of federal law embodied in statute or

380 regulation.

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

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

383 laws of the United States and of California, and the rules and regulations promulgated by the

384 Secretary of the Interior. Each party shall make such determinations in consultation with the

385 other party to the extent reasonably practicable.

386 EQUAL OPPORTUNITY

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

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

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

390 affirmative action to ensure that applicants are employed, and that employees are treated during
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391 employment, without regard to their race, color, religion, sex, or national origin. Such action

392 shall include, but not be limited to, the following: Employment, upgrading, demotion, or

393 transfer; recruitment or recruitment advertising; layoff or termination, rates of payment or other

394 forms of compensation; and selection for training, including apprenticeship. The Contractor

395 agrees to post in conspicuous places, available to employees and applicants for employment,

396 notices to be provided by the Contracting Officer setting forth the provisions of this

397 nondiscrimination clause.

398 (b) The Contractor will, in all solicitations or advertisements for employees

399 placed by or on behalf of the Contractor, state that all qualified applicants will receive

400 consideration for employment without discrimination because of race, color, religion, sex, or

401 national origin.

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

403 with which it has a collective bargaining agreement or other contract or understanding, a notice,

404 to be provided by the Contracting Officer, advising the said labor union or workers'

405 representative of the Contractor's commitments under Section 202 of Executive Order 11246 of

406 September 24, 1965, and shall post copies of the notice in conspicuous places available to

407 employees and applicants for employment.

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

409 11246 of September 24, 1965, as amended, and of the rules, regulations, and relevant orders of

410 the Secretary of Labor.

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

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

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

414 Officer and the Secretary of Labor for purposes of investigation to ascertain compliance with

415 such rules, regulations, and orders.

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

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

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

419 ineligible for further Government contracts in accordance with procedures authorized in said

420 amended Executive Order, and such other sanctions may be imposed and remedies invoked as

421 provided in said Executive Order, or by rule, regulation, or order of the Secretary of Labor, or as

422 otherwise provided by law.

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

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

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

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

427 action with respect to any subcontract or purchase order as may be directed by the Secretary of
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428 Labor as a means of enforcing such provisions, including sanctions for noncompliance: 

429 Provided, however, That in the event the Contractor becomes involved in, or is threatened with,

430 litigation with a subcontractor or vendor as a result of such direction, the Contractor may request

431 the United States to enter into such litigation to protect the interests of the United States.

432 COMPLIANCE WITH CIVIL RIGHTS LAWS

433 AND REGULATIONS

434 16. (a) The Contractor shall comply with Title VI of the Civil Rights Act of 1964

435 (42 U.S.C. 2000d), Section 504 of the Rehabilitation Act of 1975 (P.L. 93-112, as amended), the

436 Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other applicable civil rights

437 laws, as well as with their respective implementing regulations and guidelines imposed by the

438 U.S. Department of the Interior and/or Bureau of Reclamation.

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

440 grounds of race, color, national origin, handicap, or age, be excluded from participation in, be

441 denied the benefits of, or be otherwise subjected to discrimination under any program or activity

442 receiving financial assistance from the Bureau of Reclamation. By executing this contract, the

443 Contractor agrees to immediately take any measures necessary to implement this obligation,

444 including permitting officials of the United States to inspect premises, programs, and documents.

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

446 purpose of obtaining any and all Federal grants, loans, contracts, property discounts, or other

447 Federal financial assistance extended after the date hereof to the Contractor by the Bureau of

448 Reclamation, including installment payments after such date on account of arrangements for

449 Federal financial assistance which were approved before such date. The Contractor recognizes

450 and agrees that such Federal assistance will be extended in reliance on the representations and

451 agreements made in this Article, and that the United States reserves the right to seek judicial

452 enforcement thereof.

453 WATER CONSERVATION

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

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

456 resource needs and to meet the objectives of the Central Valley Habitat Joint Venture and the

457 purposes of the CVPIA to maintain and improve certain Central Valley wetland habitat areas.

458 Criteria to prepare and evaluate refuge wetland habitat water management plan(s) shall be
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459 developed by the Interagency Refuge Water Management Team within one (1) year of the

460 execution of this Contract, and reviewed and updated every five (5) years thereafter taking into

461 consideration the provisions of the Interagency Coordinated Program Task Force report dated

462 June 1998. The criteria shall include economically feasible water management measures which

463 can improve the Contractors’ efficient use of water in a manner appropriate for wetland and

464 wildlife management, and shall also include time schedules for meeting the water use efficiency

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

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

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

468 The Contractor shall make all reasonable efforts, consistent with appropriate limitations

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

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

471 Officer will review and determine if the wetland habitat water management plan(s) meet the

472 established criteria for evaluating said plan within ninety (90) days of receipt of each plan.

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

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

475 must be implementing a wetland habitat water management plan that has been determined by the

476 Contracting Officer to meet the established criteria developed pursuant to subdivision (a) of this

477 Article for preparing and evaluating said plan. Continued pooling and rescheduling benefits

478 pursuant to Articles 3 and 6 of this Contract shall be contingent upon the Contractor’s continued

479 implementation of such wetland habitat water management plans. In the event the Contracting

480 Officer determines the Contractor is unable to implement its wetland habitat water management
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481 plan, due to circumstances beyond its control, the pooling and rescheduling benefits of Articles 3

482 and 6 of this Contract shall be continued so long as the Contractor diligently works with the

483 Contracting Officer to obtain such determination at the earliest practicable date and thereafter

484 the Contractor begins implementing its wetland habitat water management plan immediately

485 after the circumstances preventing implementation have ceased.

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

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

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

489 other wetland, wildlife and fishery needs in accordance with the recommendations of the

490 Interagency Refuge Water Management Team established pursuant to Article 6 of this Contract;

491 Provided, that the Contracting Officer makes a written determination that such

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

493 reasonably mitigated, on Project operations, other Project contractors or other Project purposes;

494 Provided further, that the transfer/reallocation is requested by the Contractor and the Contracting

495 Officer determines that the transfer/reallocation is authorized by applicable laws, and then496 current applicable guidelines and/or regulations.

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

498 on the status of its implementation of the wetland habitat water management plan(s) for the

499 previous Water Year.

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

501 water management plan(s), as necessary, to reflect the then-current criteria for preparing and

502 evaluating said plans and submit such revised plan(s). Upon completion of such revised plan(s),
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503 the Contractor shall submit such revised plan(s) to the Contracting Officer for review and so the

504 Contracting Officer can determine whether such plan(s) meet the then-current criteria. 

505 EXISTING OR ACQUIRED WATER OR WATER RIGHTS

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

507 rights by the Contractor, or its acquisition of additional water or water rights from other than the

508 United States, shall not alter the obligation of the Contracting Officer to provide the maximum

509 quantities of Level 2 Water Supplies and Incremental Level 4 Water Supplies under subdivision

510 (a) of Article 3 of this Contract. 

511 CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS

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

513 obligation of the United States under this contract shall be contingent upon appropriation or

514 allotment of funds. Absence of appropriation or allotment of funds shall not relieve the

515 Contractor from any obligations under this contract. No liability shall accrue to the United States

516 in case funds are not appropriated or allotted.

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

518 the Contractor may require appropriation of funds or the allotment of funds by the State

519 Legislature and shall be contingent upon such appropriation or allotment being made. The failure

520 of the State Legislature to appropriate funds or the absence of any allotment of funds shall not

521 impose any liability on the State of California.

522 BOOKS, RECORDS, AND REPORTS

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

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

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

526 matters that the Contracting Officer may require. Reports thereon shall be furnished to the
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527 Contracting Officer in such form and on such date or dates as the Contracting Officer may

528 require. Subject to applicable Federal laws and regulations, each party to this contract shall have

529 the right during office hours to examine and make copies of the other party's books and records

530 relating to matters covered by this contract.

531 (b) Notwithstanding the provisions of subdivision (a) of this Article, no books, records,

532 or other information shall be requested from the Contractor by the Contracting Officer unless

533 such books, records, or information are reasonably related to the administration or performance

534 of this Contract. Any such request shall allow the Contractor a reasonable period of time within

535 which to provide the requested books, records, or information.

536 ASSIGNMENT LIMITED--SUCCESSORS AND ASSIGNS OBLIGATED

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

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

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

540 (b) The assignment of any right or interest in this contract by either party shall

541 not interfere with the rights or obligations of the other party to this contract absent the written

542 concurrence of said other party.

543 (c) The Contracting Officer shall not unreasonably condition or withhold

544 his/her approval of any proposed assignment.

545 LIABILITY

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

547 and employees are responsible for legal liability for damages of any nature whatsoever arising
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548 out of any actions or omissions by the Contractor, its officers, agents and employees in the

549 performance of this Contract.

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

551 and employees are responsible for legal liability for damages of any nature whatsoever arising

552 out of any actions or omissions by the United States, its officers, agents and employees in the

553 performance of this Contract. 

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

555 arising from actions within the scope of this Contract, the party receiving the claim shall notify

556 the other party of such claim and provide a copy of the claim to the other party, if it is in written

557 form. Nothing in this Article shall be construed to limit the right of either party to assert such

558 affirmative defenses and file such cross complaints as may be appropriate in relation to any claim

559 affecting the liability of such party.

560 OFFICIALS NOT TO BENEFIT

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

562 Contractor shall benefit from this contract.

563

564 CERTIFICATION OF NONSEGREGATED FACILITIES

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

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

567 employees to perform their services at any location, under its control, where segregated facilities

568 are maintained. It certifies further that it will not maintain or provide for its employees any

569 segregated facilities at any of its establishments, and that it will not permit its employees to

570 perform their services at any location, under its control, where segregated facilities are

571 maintained. The Contractor agrees that a breach of this certification is a violation of the Equal

572 Opportunity clause in this contract. As used in this certification, the term "segregated facilities"

573 means any waiting rooms, work areas, restrooms, and washrooms, restaurants and other eating
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574 areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking

575 fountains, recreation or entertainment areas, transportation, and housing facilities provided for

576 employees which are segregated by explicit directive or are in fact segregated on the basis of

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

578 Contractor further agrees that (except where it has obtained identical certifications from proposed

579 subcontractors for specific time periods) it will obtain identical certifications from proposed

580 subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from

581 the provisions of the Equal Opportunity clause; that it will retain such certifications in its files;

582 and that it will forward the following notice to such proposed subcontractors (except where the

583 proposed subcontractors have submitted identical certifications for specific periods):

584 FEDERAL LAWS

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

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

587 with the performance of the terms and conditions of this Contract , nor does the Contractor waive

588 any rights it may have to seek enforcement of obligations of the Secretary to provide water

589 supplies to the Contractor under federal law independent of this Contract; Provided, that the

590 Contractor agrees to comply with the terms and conditions of this Contract unless and until relief

591 from or compliance with application of such Federal law or regulation to the implementing

592 provision of the Contract is granted by a court of competent jurisdiction.

593 NOTICES

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

595 deemed to have been given, on behalf of the Contractor, when mailed, postage prepaid, or

596 delivered to the Area Manager __________________________________________ , and on

597 behalf of the United States, when mailed, postage prepaid, or delivered to

598 the____________________________. The designation of the addressee or the address may be

599 changed by notice given in the same manner as provided in this Article for other notices.

600 IN WITNESS WHEREOF, the parties hereto have executed this contract as of the day

601 and year first above written.

602 THE UNITED STATES OF AMERICA
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603 By: ___________________________________

604 Regional Director, Mid-Pacific Region

605 Bureau of Reclamation

606 (SEAL) CALIFORNIA DEPARTMENT OF FISH & GAME

607 By: ___________________________________

608 Director

609 Attest 

610 By: _______________________________

611 Secretary