Irrigation Districts and Trump Administration Bludgeon Federal Fish Agency into Submission

On October 1, 2018, the United States Fish and Wildlife Service wrote a letter to the Federal Energy Regulatory Commission (FERC) retracting its January 29, 2018 flow recommendations for the lower Tuolumne River (see pp. 65-74).  In its October 1 do-over letter, US Fish & Wildlife completely agrees to the required flows in the lower Tuolumne River proposed by the operators of Don Pedro Reservoir, Turlock Irrigation District and Modesto Irrigation District (Districts), and jointly supported by the City and County of San Francisco.

The road to submission was not scenic.  In March, 2018, and again in May, representatives of the Districts and the San Francisco Public Utilities Commission (SFPUC) made trips to Washington DC, where they and their lobbyists met with senior officials in the Trump administration.  These included officials in the Department of the Interior, which includes US Fish & Wildlife.

Meanwhile, back in California, the Districts and the SFPUC initiated a series of closed-door meetings with US Fish & Wildlife.  On July 20, Secretary of the Interior Ryan Zinke visited Don Pedro Reservoir with Republican Congress members Jeff Denham and Tom McClintock.  Secretary Zinke made it clear where he was going when he told the press: “The federal interest is to solve the problem.”

As described in the October 1 US Fish & Wildlife letter to FERC, “solving the problem” meant accepting the position of the Districts:

The Service proposed a set of recommendations included in the USDOI Response Letters based on studies from multiple river systems, including the Tuolumne River, successes achieved in other areas and on best available science. However, following discussions with License Applicants, the Service recognizes that the flow proposal included in the USDOI Response Letter for Don Pedro includes proposed volumes of water as a license condition that are difficult for the License Applicants to manage in the context of their FERC license without significant effects to overall water supply and operation of the Projects. For this reason, the Service proposes to focus on flow beyond the License Applicants needs that can be made available in some year types and long-term improvements to habitat that can be made to improve salmonid survival in the Tuolumne River. (October 1 letter, p. 6)

So, instead of flows based on the Service’s understanding of the “best available science,” the Service will now help the Districts manage any water that the Districts release above minimum flow requirements because the Districts don’t have space in their reservoirs to store it.  The Service and the Districts call this “spill.”  In case there is any failure to communicate about priorities, the October 1 letter specifies: “[Spill Management Plan] shall not interfere with the Project’s operations related to water supply management, minimum instream flow releases, flood control, and project safety.” (October 1 letter, p. 14)

The October 1 letter describes the process of developing the Service’s new position with a greater reliance on euphemism than the blunt description of the outcome:

Shortly after the USDOI Response Letters were filed, License Applicants reached out to the Service and USDOI to talk about the contents of the USDOI Response Letters. We opened a dialogue to determine if there were areas of common ground where we could reach agreement with the License Applicants and potentially provide revised recommendations to FERC. (October 1 letter, p. 1)

Right.  After the Districts went to the Department of the Interior in Washington, the Districts found a more favorable agenda for “dialogue.”

These discussions have been very helpful to create meaningful dialogue between the Service and License Applicants about opportunities and constraints in providing water for multiple uses and to create consensus around the importance of habitat restoration in the lower Tuolumne River. (October 1 letter, p. 2)

Aha.  A fisheries agency that substitutes “refined recommendations” based on “policy direction” (October 1 letter, p. 6) for best available science hasn’t been asked to find consensus or to engage in dialogue: it’s been told to submit.

Representatives of the San Francisco Public Utilities Commission have told staff from environmental groups that the SFPUC has been at arms’ length from some of this political maneuvering.  SFPUC staff reported at the October 9, 2018 SF Public Utilities Commission meeting that it is “very actively in Washington DC with the irrigation districts.”  (, about minute 54).  SFPUC staff was present at the closed door meetings with the Districts and US Fish & Wildlife that led up to the October 1 letter.  At a certain point, one needs to ask whether being a champion of moderation, a passive witness, or a reluctant participant makes a difference in relation to a politically enabled beat-down.

This is the most political interference in a FERC licensing process that this author has seen in eighteen years as a practitioner of FERC relicensing.

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