Common use of Xxxxxxx Slough Navigation Flow Requirements Under Federal Law Clause in Contracts

Xxxxxxx Slough Navigation Flow Requirements Under Federal Law. The NMFS BiOp requires the development of certain recommendations regarding the Xxxxxxx Slough navigation flow requirements. Reclamation’s compliance with the Xxxxxxx Slough 5,000 cfs navigation flow standard, however, is not discretionary. In this regard, Congress initially authorized the construction of certain facilities for the Central Valley Project (“CVP”) under the Rivers and Harbors Act of 1935 (the “1935 Act”). (49 Stat. 1028, 1038). The 1935 Act mandated in relevant part that “the following works of improvement of rivers . . . are hereby adopted and authorized . . . in accordance with the plans recommended in the respective reports hereinafter designated and subject to the conditions set forth in such documents . . . Sacramento River, California; Rivers and Harbors Committee Document Numbered 35, Seventy-third Congress . . . .” (50 Stat. 1028, 1038.) As such, the 1935 Act incorporates by reference, and expressly requires the implementation of, the recommendations of the Rivers and Harbors Committee Document Number 35. This document is a 1934 report from the Corps’ Chief Engineer recommending to Congress that Xxxxxxx Dam (predecessor to Shasta Dam) “shall be operated so as to provide a minimum flow of 5,000 cubic feet per second between Chico Landing and Sacramento.” (See Central Valley Project Documents, Part I, 544, 548 [Committee Doc. 35, 73rd Cong.].) Congress re-authorized the CVP under the Rivers and Harbors Act of 1937 (the “1937 Act”). (50 Stat. 844, 850.)1 This re-authorization mandated in relevant part that “the $12,000,000 recommended for expenditure for a part of the Central Valley project, California, in accordance with the plans set forth in Rivers and Harbors Committee Document Numbered 35, Seventy-third Congress, and adopted and authorized by the provisions of section 1 of the Act of August 30, 1935 (49 Stat. 1028, at 1038) . . . shall, when appropriated, be available for expenditure in accordance with the said plans of the Secretary of Interior instead of the Secretary of War.”