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The San Joaquin River Agreement

Appendix A - Conceptual Framework for Protection and Experimental Determination of Juvenile Chinook Salmon Survival Within the Lower San Joaquin River in Response to River Flow and SWP/CVP Exports

Appendix B - Planning and Operation Coordination for the Vernalis Adaptive Management Plan.

1.0 Parties to this Agreement
The parties to this San Joaquin River Agreement are:

1.1 California Resources Agency parties: California Department of Water Resources (CDWR), and California Department of Fish and Game (CDFG).

1.2 United States Department of the Interior (DOI) parties: United States Bureau of Reclamation (USBR), and United States Fish and Wildlife Service (USFWS).

1.3 San Joaquin River Group parties: San Joaquin River Group Authority (SJRGA), and its member agencies Modesto Irrigation District, Turlock Irrigation District, Merced Irrigation District, South San Joaquin Irrigation District, and Oakdale Irrigation District; the San Joaquin River Exchange Contractors Water Authority and its member agencies Central California  Irrigation District, San Luis Canal Company, Firebaugh Canal Water District and Columbia Canal Company; the Friant Water Users Authority on behalf of its member agencies; and the City and County of San Francisco (CCSF).

1.4 Central Valley Project/State Water Project (CVP/SWP) Export Interests parties: State Water Contractors, Kern County Water Agency, Tulare Lake Basin Water Storage District, Santa Clara Valley Water District, San Luis and Delta-Mendota Water Authority, Westlands Water District, and Metropolitan Water District of Southern California.

1.5 Environmental Community parties: Natural Heritage Institute and The Bay Institute of San Francisco.

2.0 Introduction

2.1 This San Joaquin River Agreement proposes, among other things, a San Joaquin River flow and SWP/CVP export study during the April-May Pulse Flow Period and a mechanism by which the State Water Resources Control Board (SWRCB) can issue an order to implement the San Joaquin River Portion (as defined herein) of the 1995 Water Quality Control Plan (WQCP) for the San Francisco Bay and Sacramento-San Joaquin River Delta Estuary system. As used in this Agreement, the term "implement" means to provide the flows and establish the pumping regiment called for in this Agreement which the Parties intend will provide environmental benefits in the lower San Joaquin River and Delta at a level of protection equivalent to the San Joaquin River Portion of the 1995 WQCP. The Parties anticipate that the SWRCB will make an independent determination of the protection provided by this Agreement before deciding whether to adopt this Agreement and its Implementation Plan. The implementation package to provide the environmental benefits intended consists of these components:

2.1.1 As set forth in Paragraph 10.1, for the term of this Agreement, the USBR shall assume responsibility for the San Joaquin River Portion of the 1995 WQCP objectives that can be reasonably met through flow measures.

2.1.2 As set forth in Paragraph 10.1.2 for the term of this Agreement, the USBR and, as appropriate, the CDWR shall assume responsibility for the 1995 WQCP objectives for the San Joaquin River basin share of Delta outflow.

2.1.3 Except as provided in Paragraph 12.1, for the term of this Agreement, the USBR and the CDWR agree that the water provided by the SJRGA and its members under this Agreement shall be the entire contribution of the SJRGA, its members, and the agencies comprising any of its members to the implementation of the San Joaquin River Portion of the 1995 WQCP.

2.1.4 For the term of this Agreement, subject to qualifications and limitations set forth herein, the State Water Project/Central Valley Project (CVP/SWP) Export Interests agree to operational constraints and export targets as specified in Paragraph 6.4.

2.1.5 As set forth in paragraph 7.1, a fish barrier at the head of Old River will be installed and operated by the CDWR.

2.2 On December 15, 1994, the federal government, the State of California, and urban, agricultural and environmental interests reached agreement on a comprehensive, coordinated package of actions designed to provide interim protection to the San Francisco Bay and Sacramento-San Joaquin River Delta Estuary. That agreement is referred to as the 1994 Bay-Delta Accord, which was recently extended to December 15, 1998.

2.3 Many of the coordinated package of actions agreed upon in the 1994 Bay-Delta Accord were adopted by the SWRCB in the WQCP adopted as 95-1WR by SWRCB Resolution No. 95-24 on May 22, 1995.

2.4 A San Joaquin River flow and SWP/CVP export study framework was developed by Doctors Bruce Herbold and Chuck Hanson. From that study framework, a collaborative effort of scientists from state and federal agencies and stakeholder groups developed the Vernalis Adaptive Management Plan (VAMP) to gather better scientific fisheries information on the lower San Joaquin River. The VAMP study referred to in this Agreement is attached as Exhibit A to this Agreement. When the VAMP study is joined with the other provisions of this Agreement, they are intended to provide environmental benefits in the lower San Joaquin River and Delta, at a level of protection equivalent to the San Joaquin River Portion of the 1995 WQCP for the duration of this Agreement.

2.5 This San Joaquin River Agreement is intended to achieve three primary objectives:

2.5.1 Implement protective measures for San Joaquin River fall-run chinook salmon within the framework of a carefully designed management and study program which is designed to achieve, in conjunction with other non-VAMP measures, a doubling of natural salmon production by improving smolt survival through the Delta. However, the Parties recognize that future salmon production cannot be guaranteed.

2.5.2 Gather scientific information on the relative effects of flows in the lower San Joaquin River, CVP and SWP export pumping rates, and operation of a fish barrier at the head of Old River on the survival and passage of salmon smolts through the Delta.

2.5.3 Provide environmental benefits in the lower San Joaquin River and Delta at a level of protection equivalent to the San Joaquin River Portion of the 1995 WQCP for the duration of this Agreement.

2.6 The 1994 Bay-Delta Accord and the VAMP study require the construction of an operable fish barrier at the head of Old River. Construction and operation of an operable Old River barrier may also require the construction of additional barriers in the south Delta to mitigate impacts of the Old River fish barrier, CVP/SWP export pumping, and other factors affecting water quality and water elevation concerns raised by in-Delta agencies. Fish barrier installation is being addressed in separate proceedings pursuant to state and federal law.

2.7 The VAMP study includes experimental operating conditions including San Joaquin River flow rates, limitations on pumping rates at the SWP and CVP export pumps located in the southern Delta, and fish barrier operations during a 31-day period during the months of April and May, beginning in 1999.

2.8 The VAMP study does not evaluate, and is not designed to control for, other factors which may be limiting fishery populations. These other factors may be material, and their effects may therefore impact the results of the VAMP study. Additional studies during the course of the VAMP study may be necessary to understand the extent to which other factors may have adverse effects on fishery populations. This Agreement imposes no obligation on the parties hereto to participate in these additional studies.

2.9 During the term of this Agreement, flow and non-flow actions, besides those provided for in the VAMP study, may take place within the San Joaquin basin to improve conditions for fisheries. These actions include but are not limited to programs under the Central Valley Project Improvement Act (CVPIA), the San Joaquin River Management Program, the "Four Pumps Agreement", and the Federal Energy Regulatory Commission (FERC) Settlement Agreement" on the Tuolumne River. It is further anticipated that projects will be undertaken pursuant to the "Category 3" Program, Proposition 204 funding, and the CALFED solution for the Bay-Delta Estuary. These additional programs will not affect the Parties' obligations under this Agreement, and this Agreement will not affect the Parties' participation in any such additional programs.

2.10 In addition to the fall-run Chinook salmon, there are other species of concern which may migrate through or reside in the Delta, some of which may be present in or reside in the San Joaquin River basin. The Agreement is also intended to provide benefits to various aquatic species other than salmon through the actions set forth herein. While the VAMP study is not directed to those other species, many of them may benefit from the flows provided by the VAMP study and other flow and non-flow actions to be taken.

2.11 Various San Joaquin River basin water users, the CVP/SWP export interests and others have already incurred monetary and water costs pursuant to state or federal proceedings or agreements as contributions toward the improvement of fishery populations in the San Joaquin River basin.

2.12 The Parties intend that implementation of the VAMP study not directly cause violations of the Vernalis salinity standard or violate water rights of any downstream water rights holder.

2.13 The Parties recognize that the State Board may be petitioned to review the water quality objectives established in the 1995 WQCP and the Board's order implementing the Plan as part of the triennial review process under the federal Clean Water Act.

3.0 Definitions

3.1 "San Joaquin River Agreement" - this Agreement.

3.2 "Existing Flow" - the forecasted flows in the San Joaquin River at Vernalis during the Pulse Flow Period that would exist absent the VAMP or water acquisitions, including, but not limited to the following:

(a) tributary minimum in stream flows pursuant to Davis-Grunsky, FERC, or other regulatory agency orders existing on the date of this Agreement;

(b) water quality or scheduled fishery releases from New Melones Reservoir, and as provided in Paragraph 5.4;

(c) flood control releases from any non-Federal storage facility required to be made during the Pulse Flow Period pursuant to its operating protocol with the U.S. Army Corps of Engineers in effect when this Agreement is executed;

(d) uncontrolled spills not otherwise recaptured pursuant to water right accretions (less natural depletions) to the system; and/or, (e) local runoff.

3.3 "Pulse Flow Period" - A period of 31 days during the months of April and May as established by the SJRTC.

3.4 "San Joaquin River Portion" - The segments of the 1995 WQCP relating to flow at Vernalis, specifically: (1) River Flows/San Joaquin River at Airport Way Bridge, Vernalis p 19; (2) San Joaquin River Salinity p. 18, (3) Southern Delta/San Joaquin River at Airport Way Bridge, Vernalis; and (4) the San Joaquin River basin share of all Delta outflow objectives.

3.5 "SJRTC" - The San Joaquin River Technical Committee described in Section 11.

3.7 "VAMP Implementation Plan" or "Implementation Plan" - The Planning and Operation Coordination for the Vernalis Operation

3.8 "60-20-20 Indicator" - The numeric adjunct to the SWRCB's San Joaquin Valley Water Year Hydrologic Classification used in this Agreement to establish Target Flows and certain responsibilities of the parties. Unless otherwise agreed, the most current Department of Water Resources forecast of the San Joaquin Valley Water Hydrologic Classification will be used for the then current year. The 60-20-20 indicator for the VAMP is as follows:

SJR Basin 60-20-20 Classification
60-20-20 Indicator:

(Wet-5), (Above Normal-4),(Below Normal-3),
(Dry-2), (Critical-1)

4.0 Term of Agreement

This Agreement shall terminate on December 31, 2009, unless extended pursuant to Paragraph 5.1, or terminated earlier pursuant to Section 13.

5.0 Obligations of SJRGA and its Members

5.1 Water To Be Provided For VAMP By SJRGA's Members. The SJRGA's members shall provide, during each Pulse Flow Period, the amount of water needed to achieve the Target Flow described herein, or 110,000 acre-feet, whichever is less except in years when extraordinary events such as facilities failure or flood make the provision of such water impossible. At the option of the DOI Parties, the term of this Agreement may be extended so that the SJRGA's members shall provide water during the Pulse Flow Period in years beyond the initial term of this Agreement needed to meet Target Flows that were not met due to impossibility. Water provided by the SJRGA's members shall be determined as the sum of waters released, in excess of Existing Flow, to implement this Agreement to achieve Target Flows. Water provided by a SJRGA member shall be measured at that member's last points of control.

5.2 SJRGA Discretion. The SJRGA shall have discretion as to the method by which its members' water will be made available, but the SJRGA shall coordinate its water release planning with the USFWS and the CDFG by way of the SJRTC. The timing and amount of flow made available shall nevertheless be sufficient to meet the Parties' obligations.

5.3 Sequential Dry-Year Relaxation. During years when the sum of the current year's 60-20-20 indicator and the previous two years' 60-20-20 indicator is four (4) or less, the SJRGA's members will not be required to provide water above Existing Flow. The USBR has continuing obligations to meet San Joaquin River flows pursuant to the March 6, 1995 Biological Opinion.

5.4 Contingent Upon New Melones Operations. The risk assumed by the SJRGA's members to provide water for the VAMP is based on the assumption that the Stanislaus River will be operated consistent with USBR's Interim Plan of Operation, dated May 1, 1997. The Stanislaus River is assumed to be operated as simulated by USBR's spreadsheet model "STANMOD" which simulates the Interim Plan of Operation during the 1922-1992 hydrologic period. Critical to the amount of water provided by the SJRGA's members are the annual water allocations of the Interim Plan of Operation and the distribution of the fishery releases during the Pulse Flow Period. The Parties acknowledge, however, that the current operation of New Melones Reservoir will be superseded by the long-term Plan of Operation currently being developed through the New Melones Stakeholders Process, and which may differ from the USBR's Interim Plan of Operation. Until the long-term plan is developed, however, the USBR agrees to operate the New Melones Reservoir consistent with the Interim Plan of Operations. In the event that, under the interim or long-term plan, flows from New Melones during the Target Flow period are less than those assumed, the water provided by the SJRGA's members shall be determined as if such flows occurred. If the New Melones flows are higher, then the Management Committee shall manage the additional flows based on the recommendation of the SJRTC.

5.5 Single-step Target Flow. Unless established otherwise pursuant to Paragraph 5.6, the 31-day out-migration Target Flow equals:

EXISTING
FLOW (cfs)

TARGET
FLOW (cfs)

0-1,999
2,000-3,199
3,200-4,449
4,450-5,699
5,700-6,999
7,000 or greater
2,000
3,200
4,450
5,700
7,000
Existing flow

When the Target Flow is 2000 cfs, the USBR will act, pursuant to Section 8, to purchase additional water necessary to fulfill the Vernalis flow requirements of existing biological opinions. When Existing Flow exceeds 7,000 cfs, the Parties will exert their best efforts to maintain a stable flow rate during the Pulse Flow Period to the extent reasonably possible. Target Flows shall be provided in accordance with the Implementation Plan.

5.6 Double-step. In any year when the sum of the current year's 60-20-20 Indicator and previous year's 60-20-20 Indicator is seven (7) or greater, an annual 31-day out-migration flow target will be the Target Flow one level higher than that established by the single-step Target Flow described in Section 5.5. If achieving the double-step Target Flows requires more water than the 110,000 acre feet of water provided by the SJRGA's members, the USBR will act, pursuant to Section 8, to acquire additional water required to achieve the double-step Target Flow.

6.0 Obligations of DOI and California Resources Agency Parties

6.1 Payment. An annual payment of four million dollars ($4,000,000) (three million dollars ($3,000,000) from the USBR to be paid from CVPIA Restoration Fund or other sources, as available; and one million dollars ($1,000,000) from CDWR as part of its CVPIA cost share or from other vailable sources, not including funds derived from SWP contractor payments),

escalated annually each January to reflect the CPI-U index, shall be made by USBR to the SJRGA, so long as SJRGA and its members perform under the terms of this Agreement. The USBR will draw first upon funds not designated for environmental purposes to the extent the right to support or oppose the use of the funds for any particular project. The funds paid to the SJRGA are intended to be substantially used to enhance efficient water management within the districts including, but not limited to water reclamation, conservation, conjunctive use, and system improvements. Use of these funds by public agencies will be documented in each agency's annual financial audit report. Payments made under this Agreement shall not be included in water rates charged by USBR or CDWR and shall not become a recoverable cost charged to any USBR or CDWR contractors. Provided, that nothing herein precludes the use of the CVPIA Restoration Fund for implementation of this Agreement. No additional payment will be required if this Agreement is extended pursuant to Paragraph 5.1. The maximum payment to be made to the SJRGA for the purposes of Paragraph 5.1 of this Agreement is $48,000,000 (December 1997 price levels).

6.2 Contingent on Appropriations. The expenditure or advance of any money or the performance of any obligation of the DOI Parties under this Agreement shall be contingent upon appropriation or allotment of funds. No liability shall accrue to the DOI and CDWR Parties in case funds are not appropriated or allotted.

6.3 Consequence of No Payment. Notwithstanding Paragraph 6.2, in any year that the required payment is not made to the SJRGA by April 1 of that year, no contributions to the VAMP Target Flows by the SJRGA will be required.

6.4 Operational Constraints and Export Targets. Except as provided in Paragraph 11.5, the CVP and SWP shall limit their exports during the Pulse Flow Period as follows:

Vernalis Target Flows (cfs)

 

2,000

3,2000

4,450

5,700

7,000

Exports          
1500

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2250

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3000        

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The Parties agree that the export limits established in this Agreement are consistent with the existing biological opinions. In circumstances where the limits in this paragraph do not apply, the USBR and CDWR will operate their respective pumping plants in compliance with any applicable provisions of then existing water quality control plans, then existing biological opinions, the 1994 Bay-Delta Accord, and any other requirements then in effect

6.5 Other Flow Conditions. The parties recognize that there will be years during the term of this agreement when the Existing flows will be greater than 7,000 cfs during the Pulse Flow Period and that in such years the Old River Barrier will not be in place or operated and that it may not be possible to maintain a constant flow rate at Vernalis. The DOI Parties believe, however, that there will be value in studying the relationship between flows and export rates on salmon smolt survival during such high flow events. When such a high flow event is forecasted, the SJRTC shall attempt to develop a plan pursuant to which those studies will be conducted under this Agreement and report its recommendation to the Management Committee. In the event the SJRTC is unable to develop a plan or if the plan is rejected by the Management Committee, the DOI Parties will conduct any such studies outside of this Agreement pursuant to applicable authority, if any. If such studies are conducted during the term of this Agreement, whether or not under this Agreement, the monitoring will be carried out and the costs of monitoring will be shared pursuant to Paragraph 9.1 of this Agreement. An inability to develop an operations plan under this Agreement when the flow conditions are greater than 7,000 cfs shall not invoke Paragraph 6.7.

6.6 Operations Plan. By February 15 of each year of this Agreement, the USBR and CDWR shall develop, in cooperation with the SJRTC, an operations plan that will describe how the VAMP will be implemented in that year. If the USBR, CDWR and the SJRTC do not complete an acceptable operations plan by February 15, or if by March 1, any party objects to the

operations plan, then the Parties will be notified and will meet to identify and resolve outstanding issues related to that year's operations plan. If the matter remains unresolved on April 10, the provisions of Paragraph 13.4 will be invoked.

6.7 Export Reductions Caused by the VAMP. If, on April 10, or 5 days before the Pulse Flow Period, the operations plan for that year is unacceptable to any Party, then the export limitations contained in Paragraph 6.4 shall not apply during that calendar year. This Paragraph 6.7, however, shall not limit or constrain the USBR or the CDWR in the operation of their respective project. When any Party objects to the operations plan developed as described in Paragraph 6.6, the Party objecting to the operations plan will be deemed to have invoked the provisions of Paragraph 13.2 as of April 10. All other provisions of this Agreement, particularly related to flows at Vernalis, shall remain in effect.

6.8 Old River Fish Barrier. CDWR shall install and operate a fish barrier at the head of Old River in a manner that will protect San Joaquin River chinook salmon smolts and in conjunction with the flows provided during the Pulse Flow Period. Until such time as a permanent barrier is constructed, a temporary barrier shall be installed each year, except in years when flood flows would prevent installation. Any negative impacts associated with the fish barrier at the head of Old River shall be mitigated consistent with CEQA, NEPA and ESA by the state and federal entities that are responsible for its construction. Design and operation of the barrier will be consistent with existing relevant biological opinions.

6.9 No Recirculation Obligation. Nothing in this Agreement shall obligate the DOI Parties to implement a plan under which water appropriated via the Delta Mendota Canal is released into the San Joaquin River to meet the objectives of the 1995 WQCP.

7.0 Conditions

The Parties' obligations under this Agreement are conditioned upon the entry by the California State Water Resources Control Board (SWRCB) of an order:

(1) finding that the terms

of this Agreement provide environmental protection at a level of protection equivalent to the Vernalis flow objectives of 1995 WQCP during the Pulse Flow Period and implementation of the remaining San Joaquin River Portion of the 1995 WQCP for the duration of this Agreement;

(2) committing to expedited issuance of notice and timely completion of appropriate hearings if objection to the operations plan described in Paragraph 6.6 are unresolved after April 10, or this Agreement should terminate;

(3) enforcing the obligations of the USBR and CDWR under this Agreement; (4) committing to the enforcement of Water Code Section 1707, through Water Code Sections 1725, 1435 or similar protection by prohibiting (a) unauthorized diversions of any portion of the flows provided by the SJRGA's members pursuant to this Agreement until they pass Vernalis; and, (b) unauthorized diversions of any Existing Flow between SJRGA members' last point of control and Vernalis; and, (5) adding appropriate changes to permits held by those SJRGA's members that have an obligation to provide water as needed to permit them to comply with the obligations imposed by this Agreement.

8.0 Purchase of Additional Water

8.1 Willing Sellers. Water for in-stream uses in excess of that required to be provided by the SJRGA's members under this Agreement may be purchased from willing sellers by the USBR.

8.2 Good Faith Efforts. The SJRGA and its members understand the importance of achieving needed data points as a part of the VAMP, and have pledged to work in good faith to make available additional amounts of water which may be purchased by the USBR on a willing seller/willing buyer basis for the limited purpose of increasing flows when necessary to obtain reasonably achievable additional data points; and to reach flows sufficient to reach the "Double-Step" data points described in Paragraph 5.6 and identified in the Implementation Plan. The parties understand that the SJRGA and its members cannot ensure that a market will be available at any specific time for the purchase of additional water because the SJRGA and its members cannot control market forces, hydrologic conditions, or other factors affecting the availability of marketable water.

8.3 Identification of Additional Available Water. Without in any way altering the obligations of SJRGA's members under Paragraphs 8.1 and 8.2, on or before March 1 of each year during the term of this Agreement, the SJRGA's members will meet and confer with the SJRTC for the purpose of identifying water which may be available for purchase by the USBR . The SJRGA and its members will use their best efforts to identify all water that is or will become available for sale to the USBR which could be utilized to meet the purposes of this Agreement and for USBR's compliance with the San Joaquin River Portion of the 1995 WQCP or its successor.

8.4 Additional Water from Merced. Merced Irrigation District shall provide, and the USBR shall purchase 12,500 acre feet of water above the Existing Flow delivered at the last point of control for release to the Merced River during October of all years. Such water releases shall be scheduled by Merced Irrigation District, CDFG and USFWS. The USBR shall pay Merced Irrigation District, within 30 days of invoice, as follows:

8.4.1 If the water is released from storage, the USBR shall pay $60.00 per acre foot ($75 per acre-foot for years in which the provisions of Section 5.3 are in effect);

8.4.2 If the water provided is re-operated flood-control releases the USBR shall pay $15.00 per acre foot;

8.4.3 These payments shall be increased annually by the same factor set forth in Paragraph 6.1;

8.4.4 Water purchased pursuant to this Paragraph 8.4 may be scheduled for months other than October provided Merced, CDFG, and USFWS all agree.

8.5 Additional Water From Oakdale. Oakdale Irrigation District shall sell 15,000 acre-feet of water to the USBR in every year of this Agreement. The price for this water will be $60 per acre-foot ($75 per acre-foot for years in which the provisions of Paragraph 5.3 are in effect). In addition to the 15,000 acre-feet, Oakdale will sell the difference between the water made available to VAMP under the SJRGA division agreement and 11,000 acre-feet. The price for this water will be $60 per acre-foot ($75 per acre-foot for years in which the provisions of Paragraph 5.3 are in effect). It will be made available at New Melones during any month of the year as required by the USBR, and may be used for any authorized purpose of the New Melones project.

8.6 Favored Purchaser. From the date of the meeting specified in Paragraph 8.3 through the end of that year's Pulse Flow Period, a SJRGA member will not sell water, for delivery solely during the Pulse Flow Period, to a party other than the USBR at a price lower than that offered to the USBR for additional water for that year's Pulse Flow Period. This limitation on sale of water during the Pulse Flow Period does not include water needed by SJRGA's members for in-district needs; district obligations and/or operations which exist on the effective date of this Agreement; and water transfer arrangements at any price that post date this Agreement where water is transferred over a period of time that extends beyond the Pulse Flow Period. For Example: Water transferred from an SJRGA member at $45 an acre foot is to be delivered to an adjacent agricultural water agency during the period April 1 to October 31. This will not violate USBR's Favored Purchaser status during the Pulse Flow period even if the price offered by USBR for Favored Purchaser water is $55 per acre foot.

8.7 The USBR's status as Favored Purchaser pursuant to Paragraph 8.6 is intended to assure the USBR that, without in any way altering the obligations of the SJRGA's members under Paragraphs 8.1 and 8.2, they will (1) use their best efforts to identify sources of water to the extent requested by the USBR ; (2) immediately notify the USBR upon becoming aware that water from willing sellers is available for sale to the USBR for use during that year's Pulse Flow Period; and, (3) not sell water that is to be delivered solely during the Pulse Flow Period at a price less than that offered to the USBR for additional water for that year's Pulse Flow Period. The USBR's status as Favored Purchaser pursuant to Paragraph 8.6 is not intended to grant a right of first refusal to the USBR over all water available for sale from SJRGA's members during, or outside the Pulse Flow Period.

9.0 Monitoring

9.1 Costs. Monitoring of fishery responses to the Target Flows is an essential component of the VAMP. The SJRTC will lead the monitoring efforts. The USBR, USFWS, CDWR and CDFG will pay half of the monitoring costs. The SJRGA, CCSF and CVP/SWP Export Interests will pay for the other half of the monitoring costs. Payments made by the DOI and California Resources Agency Parties under this Agreement shall not be included in water rates charged by USBR or CDWR and shall not become a recoverable cost charged to any USBR or CDWR contractors. Provided, that nothing herein precludes the use of the CVPIA Restoration Fund for implementation of this Agreement. The SJRGA, CCSF and CVP/SWP Export Interests will equally share their portion of monitoring costs. The SJRGA and its members, CCSF, CVP/SWP, USBR, USFWS, CDWR and CDFG will be credited for any in-kind expenses incurred in conjunction with this monitoring, and those costs incurred to support the operation of the SJRTC.

9.2 Access to Data. The Parties shall exchange all data acquired through monitoring pursuant to this Agreement. All such data shall be available to the public.

9.3 Review By IEP. The Interagency Ecological Program shall be requested to prepare an annual report on the monitoring programs in the San Joaquin River basin, including the VAMP study and any other studies relating to limiting factors.

10.0 Petition to SWRCB

10.1 Adoption of VAMP by SWRCB. All Parties shall jointly petition, prior to April 1, 1998, the SWRCB to adopt this Agreement and to implement this Agreement through an appropriate SWRCB order. The petition to adopt this Agreement will not seek to change the 1995 WQCP objectives. The petition shall make the following representations to the SWRCB:

10.1.1 In order to achieve the purposes of this Agreement, the USBR shall assume responsibility, for the term of this Agreement, for the San Joaquin River Portion of the 1995 WQCP objectives that can reasonably be met through flow measures. If this Agreement is terminated pursuant to Section 13, the USBR will operate its project in compliance with then applicable provisions of the then existing water quality control plans, then existing biological opinions, the 1994 Bay-Delta Accord and any other requirements then in effect. The requirements of this Paragraph 10.1.1 shall survive the termination of this Agreement for the shorter of two years or until the SWRCB issues a final order implementing the San Joaquin River Portion of the 1995 WQCP.

10.1.2 In order to achieve the purposes of this Agreement, the USBR and, as appropriate, the CDWR shall assume responsibility, for the term of this Agreement, for the San Joaquin River basin share of the "Delta Outflow" objectives of the 1995 WQCP. If this Agreement is terminated pursuant to Section 13, the USBR and the CDWR will operate their respective projects in compliance with applicable provisions of the then existing water quality control plans, then existing biological opinions, the 1994 Bay-Delta Accord and any other requirements then in effect to achieve the San Joaquin River basin share of Delta Outflow. The requirements of this Paragraph 10.1.2 shall survive the termination of this Agreement for the shorter of two years or until the SWRCB issues a final order implementing the San Joaquin River Portion of the 1995 WQCP.

10.1.3 Except as provided in Section 12.1, water required under this Agreement shall be the contribution of the SJRGA, its members', and the agencies comprising any member of the SJRGA to assist the USBR and CDWR in meeting the 1995 WQCP objectives. The contribution by the SJRGA and its members to assist the USBR and CDWR in meeting the Target Flows shall be the entire contribution of the SJRGA, its members and the agencies comprising any of its members, for the implementation of the San Joaquin River Portion of the 1995 WQCP for the duration of this Agreement.

10.1.4 All NEPA and CEQA documentation shall be completed and all documents required by the SWRCB shall be submitted by the Parties by March 1, 1999.

10.2 Water Code section 1707. The petition to SWRCB shall include a Water Code section 1707 petition pursuant to Section 7.0 of this Agreement. The petition may also include requests for other changes to permit the Parties to carry out their obligations under this Agreement. The petition may be accompanied by the appropriate environmental documentation for adoption of the Agreement, or, if the SWRCB elects, it may include this Agreement as an alternative in its draft EIR for the implementation of the 1995 WQCP.

10.3 Implementation Matters. If the SWRCB fails to adopt and implement the VAMP under terms consistent with this Agreement, the Parties will cooperate to petition for a change in the SWRCB adoption or implementation. If the SWRCB does not change its adoption or implementation in a manner consistent with terms acceptable to the Parties to this Agreement, the Parties will work in good faith to negotiate a modification to this Agreement that will allow its continued implementation by the SWRCB. If that negotiation is not successful, any Party to the Agreement may withdraw from the Agreement and the remaining parties will continue to work in good faith to implement the VAMP.

10.4 Vernalis Hearing. The Parties shall ask the SWRCB to continue its hearing on the interim Vernalis flow objective specified in the 1995 WQCP. The hearing was specified in the 1994 Bay-Delta Accord and the 1995 WQCP, and is required under the Settlement For Dismissal of Action filed on September 25, 1996 in SJTA et al vs. SWRCB between the SWRCB and the San Joaquin River Tributaries Association. The Parties shall request that the SWRCB convene the hearing at such time as this Agreement is terminated.

10.5 Termination Requires Notice to SWRCB.In the event that this Agreement is terminated pursuant to Sections 13 or 16, the Parties agree to notify the SWRCB immediately of such termination

11.0 San Joaquin River Technical and Management Committees

11.1 SJRTC. The SJRTC will be an interagency effort to successfully implement the VAMP by undertaking the activities described in Paragraph 11.2 and other technical activities that its members deem appropriate to meet the goals of this Agreement. The SJRTC will report its findings and recommendations to the Management Committee. Each Party shall have the right to place one technical specialist on the SJRTC. The SJRTC may, on a unanimous vote, invite other technical specialists to join including representatives from local conservation organizations. In addition, the Management Committee shall appoint two other technical specialists to the SJRTC in order to provide an independent source of scientific review, and the resulting costs of such specialists shall be paid as provided in Section 9.1. The SJRTC shall make its decisions by consensus, which allows any Party representative to veto any decision or action by the SJRTC, provided that a recommendation by any member or invited technical specialist shall be forwarded to the Management Committee. Meetings of the SJRTC will be open, and materials freely available, to the public.

11.2 SJRTC Duties. The SJRTC will:

a. Annually coordinate flow releases, export and Old River barrier operations, and use of hatchery fish, to implement the VAMP study;b. Determine best management of flow releases during the Pulse Flow Period to achieve Target Flows; c. Plan and oversee monitoring activities, in coordination with the Interagency Ecological Program and existing monitoring programs on the San Joaquin tributaries. d. Develop annually the Existing Flow calculation protocols;The SJRTC shall have no authority to adjust any export limitations imposed pursuant to this Agreement or to adjust Target Flows below those set pursuant to this Agreement, but may recommend such changes to the Management Committee.

11.3 Exchange of Technical Information. The SJRTC members agree to exchange technical information. Representatives to the SJRTC shall be technical specialists in the field of engineering, hydrology or aquatic sciences. Any party may also send other representative(s) to SJRTC meetings.

11.4 Other Support. The SJRGA agrees to provide administrative, clerical, and support facilities for the SJRTC activities.

11.5 Management Committee. A Management Committee shall review the reports and recommendations of the SJRTC and resolve all issues and disputes that the SJRTC cannot resolve. The Management Committee may adjust the Target Flows and export limitations contained herein, and which adjustment shall be reported to interested parties and the SWRCB and implemented unless disapproved by the SWRCB within 10 days. The Management Committee shall include one representative from each signatory to this Agreement. The Management Committee shall make its decisions by unanimous vote, which allows any representative to veto any Management Committee decision or action.

11.6 Management Committee Disputes. If the Management Committee cannot achieve a unanimous vote to resolve an issue presented to it, the Parties agree to try in good faith, on a schedule that is expedited to meet the objectives of this Agreement, to resolve the issue by mediation as described in Section 14.0.

12.0 Additional Assurances

12.1 Flow Requirements. Other than those flow objectives established for the VAMP, neither (1) the members of the SJRGA, (2) any of the agencies comprising a member of the SJRGA, nor (3) the CCSF shall have, during the term of this Agreement, any other requirements for flow at Vernalis or the San Joaquin River Portion of the 1995 WQCP, nor will they have an obligation under the 1995 WQCP to mitigate the impacts on water quality resulting solely from any reduction in flows in the San Joaquin River or its tributaries. This Agreement shall not affect the responsibility of these parties to mitigate impacts on water quality resulting from discharges of waste into the San Joaquin River or its tributaries. Based on its modeling of Vernalis flow requirements, the USBR hereby provides assurance that they will pursue acquisition of additional water to comply with the San Joaquin River Portion of the 1995 WQCP, pursuant to Section 8 of this Agreement.

12.2 Habitat Conservation Plan. The USFWS and/or CDFG will assist the Parties in the development of a Habitat Conservation Plan, NCCP or other appropriate plan, at the request of any Party.

13.0 Termination

13.1 Withdrawal By San Joaquin River Group Parties. Any action which materially impairs, reduces or otherwise adversely affects the water supply used or relied upon by (a) any member of the SJRGA; (b) any of the agencies comprising a member of the SJRGA; or (c) the CCSF will be grounds for that Party's withdrawal from this Agreement, provided the remaining Parties can still satisfy this Agreement's requirements for water.

13.2 Re-negotiation; Termination. It is the intent of all parties that this Agreement is to be re-negotiated and/or terminated, as appropriate, in the event of changes to the basic water supply, water rights, assumptions, facts or circumstances upon which this Agreement is based, including without limitation breach of Section 6.8 or a dispute under Paragraph 6.7.

13.2.1 Initiating Conditions. The re-negotiation/termination provisions of Paragraphs 13.1 and 13.2 will take effect when:

13.2.1.1 there is a material change to the basic water supply, water rights, assumptions, facts or circumstances upon which this Agreement is based.

13.2.1.2 a dispute arises concerning the operations plan as described in Paragraphs 6.6 and 6.7, or a dispute arises concerning the barrier at the head of Old River as described in Paragraph 6.8.

13.2.1.3 a change in condition causes a material adverse impact on any Party's or Party's member agency's (a) water deliveries to its customers; (b) water deliveries for obligations existing when this Agreement is executed; or (c) ability to perform under this Agreement. If the change in condition only requires the release of additional water by the Party currently providing water for in stream use during the Pulse Flow Period, then this Section will not take effect provided the additional water is credited toward and does not exceed the water this Agreement requires from the SJRGA and its members.

13.2.1.4 in any year the Target Flows are not achieved except when the term of this Agreement is extended by an additional year as provided in Paragraph 5.1 with payment limited as provided in Paragraph 6.1.

13.2.1.5 when, in the judgment of the USFWS, CDFG or National Marine Fisheries Service, continuation of the VAMP study is likely to jeopardize the survival or recovery of (a) any species listed, or which is a candidate for listing, under the ESA and/or CESA or (b) any species covered by an HCP or NCCP.

13.2.1.6 in any year that federal appropriations for the CVPIA Restoration Fund intended to provide payment under Paragraph 6.1 fall below $20 million.

13.2.2 Process. A Party may call for mediation in accordance with Section 14.0 to assist in the re-negotiation of this Agreement to solve the problem presented or the change in condition. A meeting of the principals of each Party will occur within 30 days of receipt of written notice to all Parties and to the SWRCB of the particular problem presented, the change in condition and the effect on the Party or the Party's member agency. The Parties will use their best efforts to re-negotiate this Agreement and resolve the problem presented.

13.2.3 Outcome. If mediation is not successful and the Parties cannot agree on how to resolve the problem within 90 days of the notice, then they may agree to terminate this Agreement immediately. If the Parties lack consensus on resolution or termination, then this Agreement terminates as of the following March 1.

13.3 Termination For Breach. If the USBR fails to pay the SJRGA as required by Paragraph 6.1, then, after a 60-day notice to cure default has been given to the USBR, the SJRGA may terminate this Agreement. If the SJRGA and its members fail to perform their obligations under this Agreement, then the USBR or the CDWR may terminate this Agreement and, except where the failure to perform is based on impossibility as described in Paragraph 5.1, require the SJRGA to pay back the money the USBR paid for the year that SJRGA and its members failed to meet their obligations.

13.4 Notice of Termination or Likelihood of Termination to SWRCB. If objection has been made by a Party to the operations plan described in Paragraph 6.6, or there has been termination of this Agreement, or after 90 days of re-negotiation without resolution as provided in Section 13.2, the Parties shall promptly advise the SWRCB.

14.0 Mediation

14.1 Resolution of Disputes. Resolution of disputes, and issues which a Party believes may subject this Agreement to Termination, shall first be submitted to a mediator, mutually selected by the Parties, with experience in water-related disputes. The Parties shall request of the SWRCB, in the order it issues pursuant to Section 10, to appoint the SWRCB Executive Director as mediator, without cost to the Parties, for Management Committee disputes on issues critical to meeting Target Flows during the Pulse Flow Period. The Parties will use their best efforts to resolve the issues within 48 hours.

14.2 Resolution of Non-Critical Issues. Mediation of issues that are not critical to meeting Target Flows during the Pulse Flow Period shall be on the same schedule as the process described in Paragraphs 13.2.2 and 13.2.3.

14.3 Mediation Costs. Mediation costs shall be divided as follows: 50% paid by the Party or Parties asserting a veto and 50% by the remaining Party or Parties. Provided that, the environmental community parties shall not be responsible for mediation costs if a veto is asserted by any other party. Provided, further that the environmental community parties shall not be responsible for mediation costs in excess of $2,000 if a veto is asserted solely by environmental community parties. In this event, mediation costs in excess of $2,000 shall be paid 50% by the DOI and California Resources Agency Parties, and 50% by the SJRGA, CCSF, and CVP/SWP Parties, share and share alike. If mediation is not completed during the specified time schedule, then issues within the existing jurisdiction of any state or federal agency shall be submitted to such agency. This section shall not be construed to expand or limit in any way the jurisdiction of any state or federal agency.

15.0 Effect of this Agreement on Other Matters

15.1 As a Precedent. Nothing in this Agreement, and nothing incorporated by reference into the terms of this Agreement, is intended or shall be construed as a precedent or other basis for any argument that the participants to this Agreement have waived or compromised their rights which may be available under state or federal law except as to the matters addressed in this Agreement.

15.2 As an Admission. Nothing in this Agreement shall be construed as an admission by any Party that such Party has obligations relative to the protection of fishery or other resources and/or the maintenance of water quality standards in the Delta. Similarly, nothing in this Agreement shall be construed or used in an effort to demonstrate that any of the Parties has surplus water or water which is not being beneficially used by such Party.

15.3 As to Jurisdiction of SWRCB. Nothing contained in this Agreement shall constitute the acknowledgment by a Party of any jurisdiction of the SWRCB over the Party outside the terms of this Agreement or SWRCB implementation of the VAMP, nor does participation in this Agreement waive any defenses that a Party may have concerning the SWRCB's jurisdiction. Further, participation in this Agreement shall not, in and of itself, give rise to SWRCB jurisdiction over the Parties for matters not expressly stated in this Agreement.

15.4 As Compromise of Disputed Claims. It is understood and agreed that this Agreement is the result of a good faith compromise settlement of disputed claims regarding the obligations of Parties to provide water required to implement the 1995 WQCP, and that this Agreement shall not be taken or construed to be an admission of any obligation or responsibility to provide that water. Each of the Parties hereto is entering into this Agreement to avoid the expense, disruption and uncertainty of a contested water right proceeding before SWRCB and the courts.

16.0 No Intended Use of Friant Water

16.1 Pursuant to this Agreement, the USBR has contractually undertaken certain obligations relative to the provision of San Joaquin River water and the implementation of the San Joaquin River Portion of the 1995 WQCP, including without limitation the obligations described in Paragraphs 5.3, 10.1.1, 10.1.2. and 12.3. The Parties do not intend that these obligations of the USBR shall be satisfied using water released for that purpose from Friant Dam or which is otherwise intended for use within the Friant Division of the Central Valley Project, other than water acquired from willing sellers.

16.2 In furtherance of that intent, if the USBR satisfies any of its obligations under this Agreement using water released from Friant Dam for that purpose, or which is otherwise intended for use within the Friant Division, other than water acquired from willing sellers, this Agreement shall immediately terminate upon written notice from the Friant Water Users Authority to the other Parties notwithstanding the provisions of Section 13 or any other provisions of this Agreement.

16.3 Upon such termination, for the intended term of this Agreement none of the other Parties shall enter into an agreement intended to accomplish the purposes of this Agreement as set forth in Section 2 without the participation and agreement of the Friant Water Users Authority; Provided, that nothing in this Paragraph 16.3 shall preclude the USBR from acquiring water from willing sellers.

16.4 Nothing in this Agreement is intended to alter the positions of any Party in Natural Resources Defense Council, et al vs. Patterson, et al. or other pending judicial proceedings.

17.0 Specific Performance

So long as the USBR and CDWR have made the payments to the SJRGA required by this Agreement, the refusal by the SJRGA or its members to provide the water required by this Agreement shall entitle a Party to an order of specific performance in a manner which gives effect to the goals of the VAMP and this Agreement.

The Sacramento-San Joaquin Delta

18.0 Representation By Counsel

This Agreement is entered into freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice, or that they have had the opportunity to consult with counsel of their own choosing, in the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. Each of the parties hereto executes this Agreement with full knowledge of its significance and with the express intent of effecting its legal consequences.

19.0 Entire Agreement

This Agreement constitutes the entire Agreement between the parties pertaining to the settlement of disputes and obligations between them with respect to obligations under the 1995 WQCP. This Agreement supersedes all prior and contemporaneous agreements and/or obligations concerning those obligations which are merged into this Agreement. Each party has made its own independent investigation of the matters settled, has been advised concerning the terms of this agreement by counsel of its choice or has had an opportunity to be so advised, and is not relying upon any representation not specified herein.

20.0 Applicable Law

This Agreement shall be construed under and shall be deemed to be governed by the laws of the State of California and of the United States, without giving effect to any principles of conflicts of law if such principles would operate to construe this Agreement under the laws of any other jurisdiction.

21.0 Construction of Agreement

This Agreement is the product of negotiation and preparation by and among each party hereto and its attorneys. Therefore, the parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by any one party or another. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

22.0 Modification of Agreement

No supplement, modification, waiver, or amendment with respect to this Agreement shall be binding unless executed in writing by the party against whom enforcement of such supplement, modification, waiver or amendment is sought.

18.0 Representation By Counsel

This Agreement is entered into freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice, or that they have had the opportunity to consult with counsel of their own choosing, in the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. Each of the parties hereto executes this Agreement with full knowledge of its significance and with the express intent of effecting its legal consequences.

19.0 Entire Agreement

This Agreement constitutes the entire Agreement between the parties pertaining to the settlement of disputes and obligations between them with respect to obligations under the 1995 WQCP. This Agreement supersedes all prior and contemporaneous agreements and/or obligations concerning those obligations which are merged into this Agreement. Each party has made its own independent investigation of the matters settled, has been advised concerning the terms of this agreement by counsel of its choice or has had an opportunity to be so advised, and is not relying upon any representation not specified herein.

20.0 Applicable Law

This Agreement shall be construed under and shall be deemed to be governed by the laws of the State of California and of the United States, without giving effect to any principles of conflicts of law if such principles would operate to construe this Agreement under the laws of any other jurisdiction.

21.0 Construction of Agreement

This Agreement is the product of negotiation and preparation by and among each party hereto and its attorneys. Therefore, the parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by any one party or another. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.

22.0 Modification of Agreement

No supplement, modification, waiver, or amendment with respect to this Agreement shall be binding unless executed in writing by the party against whom enforcement of such supplement, modification, waiver or amendment is sought.

23.0 Counterparts of Agreement

This Agreement may be signed in any number of counterparts by the parties hereto, each of which shall be deemed to be an original, and all of which together shall be deemed one and the same instrument. This Agreement, if executed in counterparts, shall be valid and binding on a party as if fully executed all on one copy.

24.0 Signatories' Authority

The signatories to this Agreement on behalf of all of the parties hereto warrant and represent that they have authority to execute this Agreement and to bind the parties on whose behalf they execute this Agreement.

25.0 Reasonable Cooperation

The parties hereto shall reasonably cooperate with each other, including the execution of all necessary further documents, if any, to carry out the purpose and intent of this Agreement.

26.0 Effective Date

The parties hereto deem this Agreement to be signed and of binding legal effect as of the date on which the last signatory hereto signs the Agreement or March 1, 1999, whichever is earlier.

27.0 Notice to Parties

All notices required under or regarding this Agreement shall be made in writing addressed as provided in the Party address list attached hereto as Exhibit C.

28.0 Federal and State Agency Obligations

Nothing in this Agreement is intended to limit the authority of the DOI Parties or the California Resource Agency Parties to fulfill their responsibilities under federal or state law. Moreover, nothing in this Agreement is intended to limit or diminish the legal obligations and responsibilities of the DOI Parties or the California Resource Agency Parties.

Appendix A - Conceptual Framework for Protection and Experimental Determination of Juvenile Chinook Salmon Survival Within the Lower San Joaquin River in Response to River Flow and SWP/CVP Exports

Appendix B - Planning and Operation Coordination for the Vernalis Adaptive Management Plan.

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Appendix A - Conceptual Framework for Protection and Experimental Determination of Juvenile Chinook Salmon Survival Within the Lower San Joaquin River in Response to River Flow and SWP/CVP Exports

Appendix B - Planning and Operation Coordination for the Vernalis Adaptive Management Plan.


 


Dennis W. Westcot, Project Administrator
San Joaquin River Group
716 Valencia Ave.
Davis, CA 95616-0153
(530) 758-8633
westcot-sjrga@sbcglobal.net

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