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Lower Tuolumne Hearing

by Cindy Charles, NCCFFF

December 20, 2009 -- Last July, the Federal Energy Regulatory Commission ordered a trial type hearing to take place in October as part of a proceeding to determine if and what interim measures should be taken for the lower Tuolumne fish before the relicensing of the Don Pedro Dam in 2016. Conservation groups and fishery agencies have been arguing for years that the flows within the license are not adequate for the populations of fall-run chinook salmon and listed Central Valley steelhead. The salmon returns are so low over the past three years, that we argued that this species was in danger of going extinct in the Tuolumne before the dam was relicensed and asked for an emergency increase in flows. In addition, Central Valley Steelhead remain a listed species and there was new scientific evidence that some of these steelhead are truly anadromous.  This trial, presided by an Administrative Law Judge, is highly unusual having been done only once before by FERC. 

I attended the site visit where the judge was shown the project on the river and I was at the trial which was held in Sacramento and was supposed to take four days.  The Conservation Groups which had standing in the matter include California Trout, the Tuolumne River Trust, Friends of the River and the California Rivers Restoration Fund.   The Natural Heritage Institute serves as legal counsel for this proceeding and has been involved in the lower Tuolumne issues for several years.  At the trial, the judge just read off questions that both parties had submitted and did not ask any of her own.  Witnesses were called to the stand and answered the questions.  There was no cross examination and the trial was over in two days since the judge rushed through it. The opposing parties are  the Turlock Irrigation District, the Modesto Irrigation District and the City of San Francisco (they have agreements with the Districts due to their operation of the Hetch Hetchy system) upstream.   The judge clearly was not familiar with fisheries or hydropower projects, not knowing what anadromous meant or what a steelhead was in spite of having written testimony submitted to her well before the trial.  NMFS, DFG and the Fish and Wildlife Service did a great job in submitting written testimony to the judge as well as were well-prepared witnesses.  We are asking for increased flows and at the right time to save the fish.  Salmon need better flows for outmigration of smolts at the right time and steelhead need adequate flows for cold water year-round since they over summer in the river. We also pointed out the benefits of floodplain inundation in the spring with higher flows to the juvenile salmon.

In November, the judge issued a report to the Commission which summarized some of the testimony and was weighted towards that of the Districts.  We were disappointed that she did not have any direct recommendations to the Commission which will make the final decision on the interim measures.  The judge actually wrote that salmon were in danger of extirpation from the Tuolumne, but that they could come back.  This is totally unacceptable.  The Conservation Groups are working with the fishery agencies to write our Final Statement, due Jan. 5th before the Commission makes its decision. 

This has been a grueling and intensive proceeding, but we are hopeful that we will gain some changes to support the fish until the relicensing begins in 2011.