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, 2023 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 |
|
|
|
|
|
| 2250 |
|
|
|
|
|
| 3000 |
|
|
|
|
|
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, 2022 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.
 
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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