Amendment No. 1
Delta Flood Protection Program, Amendment No. 1
Memorandum of Understanding
Enclosed for your signature is Amendment No. 1 to the existing March 26, 1992 MOU which
directs the implementation of mitigation for Delta Flood Protection Act programs. An
amended MOU is required by SB 900 and AB 360.
The Clean, Safe, Reliable Water Supply Act of 1996 (Proposition 204) appropriates $25
million for the Delta Flood Protection Program and requires that Program expenditures be
consistent with a net long-term habitat improvement program and, specifically, a net
benefit for aquatic species in the Delta. The enclosed amendment addresses the
implementation of this new mandate. The amendment must be approved by the MOU signatories
before Proposition 204 funds may be spent for flood protection and habitat improvement.
This amendment was drafted by DWR program and legal staff in coordination with the DFG
program and legal staff, The Reclamation Board, and The Resources Agency Advisory
Committee.
Please return the signed amendment to Curt Schmutte in DWR's Central District office at
3251 S Street, Sacramento, California 95816. If you have any questions, please contact me
or your staff may contact Curt Schmutte at (916) 227-7567.
AMENDMENT NO. 1
to the
MEMORANDUM OF UNDERSTANDING
by and between
the
CALIFORNIA DEPARTMENT OF WATER RESOURCES
THE RECLAMATION BOARD
CALIFORNIA DEPARTMENT OF FISH AND GAME
and
THE RESOURCES AGENCY
The parties to the Memorandum of Understanding dated March 26, 1992, by and between the
California Department of Water Resources (hereinafter DWR), The Reclamation Board
(hereinafter Board), the California Department of Fish and Game (hereinafter DFG), and The
Resources Agency, collectively referred to as the Parties, desire to amend the Memorandum
of Understanding (hereinafter MOU) in light of the following circumstances:
WHEREAS, the MOU directs the implementation of the mandate of SB 34 of 1988 that the
Delta levee maintenance subventions program (subventions program) and special Delta flood
control projects (special projects) result in no net long-term loss of riparian, fisheries
and wildlife habitat. These two program elements are collectively known as the Delta Flood
Protection Program (Program):
WHEREAS, in 1996 the Legislature enacted SB 900 and the voters of California approved
Proposition 204, the Clean, Safe, Reliable Water Supply Act of 1996 (the Act). The Act
appropriates a total of $25 million for the subventions program and for special projects.
The Act requires that expenditures from this appropriation for the subventions program and
special projects be consistent with a net long-term habitat improvement program, and have
a net benefit for aquatic species in the Delta, and that the parties amend the MOU to
include that requirement;
WHEREAS, the Parties desire to fulfill that obligation as stated in the Act to assure
that net long-term habitat improvement, including that for aquatic species, will occur as
a result of projects funded by the Act; AND
WHEREAS, the term "net long-term habitat improvement" is defined in Water
Code Section 12310(e) as the enhancement of riparian, fisheries and wildlife habitat; AND
WHEREAS, a program for net long-term habitat improvement in the Delta is defined as an
enhancement in the quality and quantity of all levee-associated habitat. The types of
habitat associated with levees are described in the Master Environmental Assessment dated
October 1995, prepared for the SB 34 program; AND
WHEREAS, elements of the habitat improvement program should be geographically
distributed based upon ecological principles that serve to maintain or enhance the
biological diversity of the Delta, and will not preclude or affect adoption or
implementation of CALFED’s Ecosystem Restoration Program Plan; AND
WHEREAS, the specific type, quantity and distribution of habitat associated with the
habitat improvement program are yet to be determined; AND
WHEREAS, the Parties recognize that the Delta currently supports threatened and
endangered species which could benefit from the habitat improvement program.
NOW, THEREFORE, it is mutually agreed and understood as follows:
1. DFG shall develop the habitat improvement
program required by the Act.
2. The habitat improvement program shall consist of numerous project components
associated with levee maintenance and improvements. A habitat improvement program
component shall be submitted with each levee maintenance and/or improvement proposal.
These components may be achieved by:
A. Adding an incremental habitat improvement project to the proposed levee project, or
B. Using habitat credits already established in an existing habitat area or mitigation
bank.
3. DFG shall make the written determination that a habitat improvement component is
consistent with the habitat improvement program.
4. The SB 34 Master Environmental Assessment, Mitigation Guidance Document and other
pertinent sources shall be used to guide the implementation of habitat improvement program
elements.
5. Projects consistent with the habitat improvement program shall, to the greatest
extent possible:
A. Improve and increase aquatic habitats so that they can support the sustainable
production and survival of native and other desirable estuarine and anadromous fish in the
estuary.
B. Improve and increase important wetland habitats so that they can support the
sustainable production and survival of wildlife species.
C. Increase population health and population size of Delta species to levels that
ensures sustained survival.
D. Be consistent with selected, priority habitat development projects supported by DWR
and DFG.
E. Be combined with other State, federal and local programmatic efforts to achieve
terrestrial and aquatic habitat improvements.
F. Take advantage of habitat improvement opportunities associated with the beneficial
reuse of dredged material and subsidence control efforts allowed by AB 360.
6. DWR and DFG may develop habitat improvement components for use by the reclamation
districts in meeting the mandates of the Program.
7. Each project component of the habitat improvement program shall:
A. Consider the value of the fisheries and wildlife habitat and the need to provide
flood protection based on sound engineering.
B. Describe the work to be implemented.
C. Provide a schedule of project implementation.
D. Provide a financing plan for the habitat improvement program work, and any necessary
operations and maintenance requirements.
E. Provide assurances for long-term operation and maintenance of the habitat
improvement program work, as necessary.
F. Provide documents and permits required by State, federal and local laws and
regulations, such as documents required under CEQA.
8. DWR and Board, in consultation with DFG, and coordinated with any direct
appropriations to DFG as may be made, will reserve funds for protective measures to ensure
that the habitat improvement program mandate is satisfied. This account may be adjusted
each year, depending upon the cost of providing the appropriate habitat improvements. This
money may be spent only for fish and wildlife purposes and only by or with the concurrence
of DFG. Funding for approved projects shall include sufficient funds for maintenance and
operation costs necessary to sustain the long-term viability of the habitat improvement
program elements.
9. DFG shall provide an annual report to The Resources Agency by January 15 of each
year summarizing the actions, expenses and benefits associated with the habitat
improvement program.
10. This Amendment No. 1 is intended to be consistent with terms and
conditions of the MOU, and shall be construed toward that end. To the extent that any term
or condition of this Amendment is determined to be inconsistent with the MOU, then this
Amendment shall prevail.
11. The effective date of this Amendment No .1 shall be the last date signed below.
November 30, 1997
Douglas P. Wheeler, Secretary, The Resources Agency
David N. Kennedy, Director, Department of Water Resources
Jacqueline E. Schafer, Department of Fish and Game
Director Peter Rabbon, General, Manager The Reclamation Board
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