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Resource Agencies and Conservation Groups Defend Higher Tuolumne Flows


by Chris Shutes, CSPA FERC Projects Director

January 5, 2010. Three fisheries agencies and four conservation groups filed comments today with the Federal Energy Regulatory Commission supporting increased flows for the lower Tuolumne River. The agencies and groups seek interim flow measures downstream of La Grange Dam until the Don Pedro Hydroelectric Project is relicensed by FERC in 2016. The goal of the increased flows is to increase the populations of Chinook salmon and Central Valley steelhead, and keep them from going extinct.
The interim flows were proposed in September by the National Marine Fisheries Service, U.S. Fish and Wildlife Service, and California Department of Fish and Game. They are supported by Friends of the River, California Trout, Tuolumne River Trust and California River Restoration Fund. The proposed flows combine high late-winter flows for salmon and steelhead juvenile rearing, high spring flows for migration of both species out of the river and for water temperature maintenance, higher summer flows for temperature moderation for rearing steelhead, and fall pulse flows to attract Chinook salmon into the river. The proposed measures also include studies of fish response and an adaptive management approach to the increased flows.
Through an oversight in 2005, CSPA, which has been engaged on the Tuolumne since 1994, did not have standing in this unusual proceeding created by the FERC. However, for the purposes of the proceeding, CSPA’s FERC Projects Director Chris Shutes arranged to be a special consultant to Friends of the River, which had standing but no staff experience with the lower Tuolumne. As such, he became an influential NGO staff representative throughout the process.
The project operators, Turlock Irrigation District and Modesto Irrigation District, and the City of San Francisco and Bay Area Water Users who also draw water from the river, argued in the proceeding that instream flow to benefit fish should not be increased. The Districts, the City and Bay Area interests argued that a worst-case drought would lead to devastating losses if the proposed interim flow measures were implemented. Resource Agencies and Conservation Groups responded that the likelihood of prolonged drought is very small. We argued that it is unreasonable to require certainty for fisheries outcomes while the mere chance of water supply impacts was sufficient to reject flow improvements.
The comments state in part:
“By themselves, additional Don Pedro flow releases may not overcome all other limiting factors at a population level, in the ordinary sense of completely ameliorating all external adverse conditions. But that is wrong legal standard. The Licensees must mitigate project impacts on life stages and habitat within the river reach under project influence. FERC may not permit adverse project impacts on a scale that causes extirpation from that reach, on grounds that other limiting factors downstream might also contribute to extirpation elsewhere. That is “tragedy of commons” logic, where a regulator (in this case FERC) permits one user to deplete the commons on grounds that other regulators are permitting other users to do the same.
“Temporal conditions in the ocean and Delta do not excuse the Licensees or the Commission from decades of direct adverse impacts on anadromous fisheries resources downstream of the project. There is extensive evidence that the recommended Interim Measures would substantially enhance anadromous fish populations in the lower Tuolumne River. Dr. Moyle’s statement that there are no “guarantees,” and the notion that interim flows must be capable of overcoming all of the limiting factors before relicensing, create a threshold for affirmative action that is unreasonable.”
The Districts, San Francisco, and the Bay Area Water Users filed comments supporting use of a worst-case water supply scenario as the appropriate metric by which to judge improved instream flows.
National Heritage Institute, led by attorney Julie Gantenbein, represented the Conservation Groups in this proceeding. Cindy Charles, whose perseverance helped to initiate the proceeding, participated as a special consultant to California Trout.


Group comments on the Tuolumne River