AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
DEPARTMENT: Water Enterprise
AGENDA NUMBER: 8
MEETING DATE: October 27, 2026
Calendar: Regular Calendar
Project Manager: Ellen Levin
Authorize First Amendment to Memorandum of Agreement with the Turlock Irrigation District and the Modesto Irrigation District
Summary of Proposed
Commission Action:
Authorize the General Manager to : (1) execute a First Amendment to the 2021 Memorandum of Agreement with the
Turlock Irrigation District and the Modesto Irrigation District on the management and allocation of shared costs for
Tuolumne River fish matters below the Don Pedro Project until the Federal Energy Regulatory Commission , for an amount not to exceed $9,500,000 and (2) authorize funding habitat improvement projects pursuant to the terms and
limitations of the agreement.
Background: The San Francisco Public Utilities Commission (SFPUC) has a long -standing relationship with the Turlock and Modesto Irrigation Districts (Districts). The Districts own and operate the New Don Pedro Reservoir and the Don Pedro
Hydropower Project under a Federal Energy Regulatory
Commission (FERC) license. SFPUC maintains a water bank account in Don Pedro Reservoir . Given their mutual interests in Don Pedro Reservoir, including the Districts’ hydropower project relicensing and environmental conditions downstream from Don Pedro Reservoir, SFPUC and the Districts have for many years shared the costs of various scientific studies and habitat projects to support environmental stewardship on the lower Tuolumne River.
On July 27, 2021, by Resolution No. 21-0119, following a previous memorandum of agreement, this Commission
authorized the General Manager to execute a new
Memorandum of Agreement (2021 Agreement) with the
Districts on the management and allocation of costs for Tuolumne River fish matters below the Don Pedro Project until FERC issues a new license for an amount not-to-exceed $9,000,000 and with a duration of up to nine years.
Agreement: Authorize First Amendment to Memorandum of Agreement with Modesto Irrigation District and Turlock Irrigation District
Commission Meeting Date: October 27, 2026
Description of
Agreement:
The First Amendment provides:
• an additional $500,000 to the SPFUC’s not-to-exceed
funding obligation for a total not-to-exceed amount for SFPUC of $9,500,000;
• a cost share allocation among the Parties for a broader category of habitat improvement projects defined in
Section 4(D)(2), and a streamlined consent process for
SFPUC’s participation in future Lower Tuolumne River
habitat improvement projects by authorizing the
General Manager to provide consent to proceed with
any future projects subject to the terms and limitations of the First Amendment;
• additional clarity and flexibility around budgeting and invoicing, and,
• consent to pay for the costs associated with the
Powerhouse Riffles Project, located near the
La Grange Diversion Dam, which has been designed
to provide additional spawning habitat.
There is no change to the existing term of the 2021
Agreement, which shall expire on June 29, 2030, or upon FERC’s issuance of the license or termination of the First Amendment, whichever occurs sooner.
By 2024, the SFPUC, the District s completed one habitat improvement project pursuant to the cost -allocation and funding limitations set forth in the 2021 Agreement . The parties desire to continue to collectively explore further habitat improvement projects and expand the governing cost- allocations for the Additional Habitat Improvement Projects as defined in this First Amendment to the 2021 Agreement (First Amendment).
To further these efforts, the First Amendment includes
provisions that , if approved by the Commission , will
constitute consent to SFPUC’s funding a share (up to 1/3) of construction costs for a second project, named the
Powerhouse Riffles Project. The Powerhouse Riffles Project is located on the Lower Tuolumne River near the La Grange Diversion Dam and has been designed to provide additional spawning habitat for native salmon species. Authorization for SFPUC to fund construction for this project is contingent upon adoption of the First Amendment.
Agreement: Authorize First Amendment to Memorandum of Agreement with Modesto Irrigation District and Turlock Irrigation District
Commission Meeting Date: October 27, 2026
The key terms and conditions of the First Amendment overall are as follows:
• Provides a cost allocation for costs related to
Tuolumne River fishery matters that are not covered
under other existing agreements between the Districts
and the SFPUC.
• Establishes a management committee consisting of
the General Managers or their respective designees to
determine policy and make financial decisions
regarding fish matters in the Tuolumne River related to FERC relicensing of the Don Pedro Hydropower
Project and provides for process es for payments and
annual budgets.
Funding & Costs: Funding Source : Hetch Hetchy Water, Project No. 10042739 – FERC/Healthy Rivers Obligations.
Costs: The First Amendment adds $500,000 to the
agreement. The total overall not-to-exceed cost will be $9,500,000.
Schedule: Services began on June 29 , 2021, and will continue until June 29, 2030, or until FERC issues a new license or upon termination. The maximum duration of this agreement is 9 years, beginning on June 29, 2021.
Environmental
Review:
Except for modifications to the 2021 Agreement related to the Powerhouse Riffles Project described below, this action does not constitute a project under the California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not result in a physical change in the environment, and it does not represent an approval of a specific project.
Environmental review for any future project(s) will occur once the project scope is adequately defined for the CEQA.
SFPUC authorization of any work involving ground
disturbance or any other physical changes in the environment will not occur until any necessary environmental review has been completed pursuant to the CEQA. The SFPUC retains
discretion to, among other things, modify the project(s) to mitigate significant environmental impacts, require
implementation of specific measures to mitigate any
significant environmental impacts, or reject the project(s) following completion of environmental review.
Agreement: Authorize First Amendment to Memorandum of Agreement with Modesto Irrigation District and Turlock Irrigation District
Commission Meeting Date: October 27, 2026
On January 4, 2026, the Turlock Irrigation District , acting as the Lead Agency under the CEQA, determined the
Powerhouse Riffles Project (referred to therein as the
Powerhouse Riffles Restoration Project) meets all the
requirements in Public Resources Code Section 21080.56 for a CEQA statutory exemption for restoration projects and requested concurrence from the California Department of Fish and Wildlife (CDFW). On March 16, 2026, the CDFW
Director concurred with the Lead Agency’s determination that the Powerhouse Riffles Project meets the qualifying criteria set forth in Public Resources Code Section 21080.56,
subdivisions (a) to (d ), inclusive. The Lead Agency has developed a Science, Monitoring, and Maintenance Plan and has assumed responsibility for its implementation. On March 16, 2026, the Lead Agency filed a Notice of Exemption for the Powerhouse Riffles Project.
The SFPUC is acting within its discretionary approval
authority as a Responsible Agency under the CEQA
Guidelines 15096 and 15381 to modify the 2021 Agreement to consent to pay for the costs associated with the
Powerhouse Riffles Project.
The SFPUC has reviewed the Lead Agency’s exemption
determination and the CDFW concurrence determination and finds that modi fying the 2021 Agreement to consent to
payment for costs associated with the Powerhouse Riffles Project is within the scope of the exemption, which is
adequate for this action.
The SFPUC has no direct authority or responsibility with respect to the Powerhouse Riffles Project or for implementing any measures in the Science, Monitoring, and Maintenance Plan, other than to pay for costs.
View the Lead Agency exemption and CDFW concurrence
request, CDFW concurrence determination , Notice of
Exemption, and Science, Monitoring, and Maintenance Plan.
Attachments 1) First Amendment to 2021 Cost Allocation
Memorandum of Agreement
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO. __________________
WHEREAS, The San Francisco Public Utilities Commission (SFPUC) has a long - standing relationship with the Turlock and Modesto Irrigation Districts (Districts). The Districts own and operate the New Don Pedro Reservoir and the Don Pedro Hydropower Project under a Federal Energy Regulatory Commission (FERC) license.
SFPUC maintains a water bank account in Don Pedro Reservoir. Given their mutual interests in Don Pedro Reservoir, including the Districts’ hydropower project relicensing and environmental conditions downstream from Don Pedro Reservoir, SFPUC and the Districts have for many years shared the costs of various scientific studies and habitat projects to support environmental stewardship on the lower Tuolumne River; and
WHEREAS, On July 27, 2021, by Resolution No. 21-0119, following a previous memorandum of understanding between SFPUC and the Districts, this Commission authorized the General Manager to execute a Memorandum of Agreement with the Turlock Irrigation District and the Modesto Irrigation District on the management and allocation of costs for Tuolumne River fish matters below the Don Pedro Project until the Federal Energy Regulatory Commission issues a new license for an amount not -to- exceed $9,000,000 and with a duration of up to nine years. (2021 Agreement), which became effective on June 29, 2021; and
WHEREAS, The 2021 Agreement shall expire upon the earlier of nine years from the June 29, 2021, execution date, FERC issuance of a new license for the Don Pedro Hydropower Project, or termination; and
WHEREAS, By 2024, the parties to the 2021 Agreement , SFPUC, the Modesto Irrigation District, and the Turlock Irrigation District (Parties) completed one habitat improvement project pursuant to the cost -allocation and funding limitations set forth in Section 4(D)(1) of the 2021 Agreement; and
WHEREAS, The Parties desire to continue to collectively explore further habitat improvement projects, and through this First Amendment to the 2021 Agreement (First Amendment), the Parties now amend the 2021 Agreement to include Section 4(D)(2), governing cost-allocations for future Additional Habitat Improvement Projects, as well as revisions to the budget and payment provisions of the 2021 Agreement to allow for enhanced communication and greater flexibility; and
WHEREAS, Through this Resolution and by adopting the First Amendment, the SFPUC would further consent to pay for the costs associated with the Powerhouse Riffles Project, located near the La Grange Diversion Dam which has been designed to provide additional spawning habitat; and
WHEREAS, Except for modifications to the 2021 Agreement related to the Powerhouse Riffles Project described below , this action does not constitute a project under the California Environmental Quality Act (CEQA) Guidelines Section 15378 because it will not result in a physical change in the environment, and it does not represent an approval of a specific project; and
WHEREAS, Environmental review for any future project (s) will occur once the project scope is adequately defined for the CEQA, and SFPUC authorization of any work involving ground disturbance or any other physical changes in the environment will not occur until any necessary environmental review has been completed pursuant to the CEQA; and
WHEREAS, The SFPUC retains discretion to, among other things, modify the future project(s) to mitigate significant environmental impacts, require implementation of specific measures to mitigate any significant environmental impacts, or reject the project(s) following completion of environmental review; and
WHEREAS, On January 4, 2026, the Turlock Irrigation District , acting as the Lead Agency under the CEQA, determined the Powerhouse Riffles Project (referred to therein as the Powerhouse Riffles Restoration Project) meets all the requirements in Public Resources Code Section 21080.56 for a CEQA statutory exemption for restoration projects and requested concurrence from the California Department of Fish and Wildlife (CDFW); and
WHEREAS, On March 16, 2026, the CDFW Director concurred with the Lead Agency’s determination that the Powerhouse Riffles Project meets the qualifying criteria set forth in Public Resources Code Section 21080.56, subdivisions (a) to (d), inclusive ; and
WHEREAS, The Lead Agency has developed a Science, Monitoring, and Maintenance Plan and has assumed responsibility for its implementatio n, and on March 16, 2026, the Lead Agency filed a Notice of Exemption for the Powerhouse Riffles Project; and
WHEREAS, The SFPUC is acting within its discretionary approval authority as a Responsible Agency under the CEQA Guidelines 15096 and 15381 to modify the 2021 Agreement to consent to pay for the costs associated with the Powerhouse Riffles Project; and
WHEREAS, The SFPUC has reviewed the Lead Agency’s exemption determination and the CDFW concurrence determination and finds that modi fying the 2021 Agreement to consent to payment for costs associated with the Powerhouse Riffles Project is within the scope of the exemption, which is adequate for this action ; and
WHEREAS, The SFPUC has no direct authority or responsibility with respect to the Powerhouse Riffles Project or for implementing any measures in the Science, Monitoring, and Maintenance Plan, other than to pay for costs; and
WHEREAS, The Lead Agency’s exemption , CDFW concurrence determination , Notice of Exemption , and Science, Monitoring, and Maintenance Plan are available for review at the SFPUC offices, Environmental Management, 525 Golden Gate Avenue, 11th floor, San Francisco, California 94102; staff have made these materials available for review by both this Commission and the public, and they are incorporated into the record before this Commission; and
WHEREAS, Since the Lead Agency made the exemption determination, there have been no substantial changes in the Project or its circumstances, or new information that would change the conclusions set forth in the exemption determination ; and
WHEREAS, Funds for the Agreement are available from Project No. 10042739 – FERC/Healthy Rivers Obligations; now, therefore, be it,
RESOLVED, That this Commission hereby authorizes the General Manager of the San Francisco Public Utilities Commission to execute the First Amendment to the 2021 Memorandum of Agreement with Turlock Irrigation District and Modesto Irrigation District fo r SFPUC to contribute to the construction of Lower Tuolumne River habitat improvement projects a total amount not to exceed $9,500,000, and with a total duration of nine years unless terminated earlier due to FERC issuance of a new license for the Don Pedro Hydropower Project or termination by one or more of the parties , whichever occurs sooner; and, be it,
FURTHER RESOLVED, That this Commission hereby authorizes the General Manager, pursuant to Section 4(D)(2) of the First Amendment, to provide written consent to proceed with future Lower Tuolumne River habitat improvement projects that may be considered and funded pursuant to the First Amendment, subject to the limitations in the First Amendment, including, but not limited to, the not -to-exceed contribution amount and Section 8 of the First Amendment relating to environmental review; and, be it,
FURTHER RESOLVED, That this Commission approves the payment by SFPUC of a one -third share of construction costs associated with the Powerhouse Riffles Project, located near the L a Grange Diversion Dam, which has been designed to provide additional spawning habitat.
I hereby certify that the foregoing resolution was adopted by the San Francisco Public Utilities Commission at its meeting of October 27, 2026.
__________________________________
Director of Commission Affairs
San Francisco Public Utilities Commission
Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
2021 AGREEMENT
BETWEEN
CITY AND COUNTY OF SAN FRANCISCO,
AND
TURLOCK IRRIGATION DISTRICT AND MODESTO IRRIGATION DISTRICT ON
MANAGEMENT AND ALLOCATION OF COSTS FOR
TUOLUMNE RIVER FISH MATTERS
BELOW THE DON PEDRO PROJECT
UNTIL FERC ISSUES A NEW LICENSE
(FIRST AMENDMENT)
1. PARTIES
THIS AGREEMENT, dated for reference purposes only as July 13, 2021, is made by and between the CITY AND COUNTY OF SAN FRANCISCO, a California municipal corporation ("San Francisco" or "City"), acting through its Public Utilities Commission ("SFPUC"), and the TURLOCK IRRIGATION DISTRICT ("TID") and the MODESTO IRRIGATION DISTRICT ("MID"), which are California irrigation districts each acting through its Board of Directors (together, "the Districts"), hereinafter sometimes referred to individually as a “Party” and collectively as the “Parties.”
2. RECITALS
This agreement is made with reference to the following:
A. The Parties operate certain water conservation facilities on the Tuolumne River for domestic, municipal, and industrial water supply, irrigation, flood control, electrical power, recreation, and environmental purposes, and have operated such facilities effectively and harmoniously for many years.
B. The Parties have entered into four agreements dated February 29, 1940, November 22, 1943, June 30, 1949, and May 23, 1966 (the First, Second, Third and Fourth Agreement, respectively) to cooperate in developing programs and projects for conserving Tuolumne River water, including the Don Pedro Project ("the Project").
C. The Federal Energy Regulatory Commission ("FERC") issued the original license for the Project to the Districts in 1964, which license expired in 2016; D. The Fourth Agreement apportioned Project costs between the Parties arising from the Districts' responsibilities as FERC licensees for the Project for (1) studies relating to the fishery of the Tuolumne River as FERC may require, (2) any proceedings resulting from such FERC-required Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
fishery studies, and (3) of any facilities or program instituted as a consequence of such fishery studies or related proceedings.
E. In 1995, the Parties, federal and state resource agencies, FERC staff, and non- governmental organizations executed the Settlement Agreement for the New Don Pedro Proceeding, Project-2299-024 ("FERC Settlement Agreement") that proposed (1) minimum stream flow schedules at La Grange for fish, (2) programs to monitor Chinook salmon populations and habitat in the Tuolumne River, and (3) programs and activities to enhance habitat in the Tuolumne River downstream of the Project.
F. On April 21, 1995 the Parties executed an agreement to allocate responsibility and costs for meeting the minimum stream flow schedules set forth in the FERC Settlement Agreement ("the Flow Side Agreement").
G. In 1996 the Parties executed the Agreement on Allocation of Certain FERC Costs between City and County of San Francisco and Modesto Irrigation District and Turlock Irrigation District to implement Section 22 of the FERC Settlement Agreement ("the Non-flow Side Agreement").
H. In July 1996 FERC ordered the FERC Settlement Agreement's proposed minimum stream flow schedules and monitoring programs, and further required preparation of a report in 2005 in order to determine whether to require further monitoring studies or changes in Project structures and operations to protect fishery resources in the Tuolumne River.
I. Under the Non-flow Side Agreement, the Parties agreed to provide $1,355,000 in funding for FERC Settlement Agreement Section 13 monitoring programs and up to $1.0 million for FERC Settlement Agreement Section 12 restoration programs and projects.
J. The $1,355,000 in FERC Settlement Agreement Section 13 funding was fully expended in 2004. The $1,000,000 restoration programs and projects funding was fully expended by the Parties in 2006.
K. On June 29, 2011, the Parties entered into an “Agreement on Management and Allocation of Costs for Tuolumne River Fish Matters Below the Don Pedro Project Until FERC Issues a New License.” The 2011 Agreement provided that it would expire upon FERC’s issuance of a new license for the Project, which the Parties expected would occur some time in 2016.
L. The Districts applied for a new license for the Project and have initiated the relicensing process and that process is ongoing.
M. Due to restrictions in San Francisco’s City Charter regarding agreements with a term of more than ten years and at the request of the SFPUC, the Parties mutually agreed to terminate the 2011 Agreement as of June 29, 2021 and stated their desire to enter into a new agreement on substantially the same terms and conditions as the 2011 Agreement prior to such termination.
Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
N. On July 13, 2021, the Parties executed the 2021 Agreement Between City and County of San Francisco and Turlock Irrigation District and Modesto Irrigation District on Management and Allocation of Costs for Tuolumne River Fish Matters Below the Don Pedro Project Until FERC Issues a New License.
O. As set forth in this Agreement, the Parties may dispute whether certain future costs related to the current FERC license or relicensing are appropriately billed to San Francisco under the Fourth Agreement or any other existing agreement.
P. The Parties acknowledge that it is in their interest prior to relicensing to learn as much as possible about conditions affecting fish species in the Tuolumne in order to design and implement flow proposals, programs, and projects that will benefit such fish.
Q. The Parties acknowledge their respective water supply interests may be affected by FERC proceedings on minimum stream flows during the term of the current license or upon relicensing, and such interests can best be protected by working cooperatively in studies, programs and projects, some of which may be subject to the Fourth Agreement and some of which may not.
R. It is in the best interests of the Parties to now set forth a process for decision making on such studies, programs, and projects related to fish matters affected by FERC proceedings on minimum stream flows during the term of the current license and relicensing, and for apportioning costs between the Parties;
S. By 2024, the Parties completed one habitat improvement project pursuant to the cost- allocation and funding limitations set forth in Section 4(D)(1) of this Agreement. The Parties desire to continue to collectively explore further habitat improvement projects. Therefore, as of the effective date of the First Amendment to this Agreement, the Parties are now amending this Agreement to include Section 4(D)(2), governing cost-allocations for the Additional Habitat Improvement Projects, as defined and set forth in that section.
T. By this First Amendment and pursuant to Section 4(D)(2) of this Agreement, the Parties further confirm their consent to pay for the costs associated with the Powerhouse Riffles Project, located near the La Grange Diversion Dam, which has been designed to provide additional spawning habitat.
In consideration of the mutual covenants and conditions hereinafter set forth, the Parties agree as follows:
3. SCOPE AND TERM OF THE AGREEMENT
A. Scope. Unless expressly provided herein, the Parties agree that this Agreement shall not be construed as modifying or superseding any provision of the following agreements, which shall also Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
be collectively known as the "Don Pedro Existing Agreements":
• the First, Second, Third, or Fourth Agreements;
• the FERC Settlement Agreement;
• the Non-flow Side Agreement; or
• the Flow Side Agreement.
B. Term. The term of this Agreement shall commence upon execution by all of the general managers for the respective parties, and shall terminate upon either (1) FERC’s issuance of a new license for the Project, or (2) nine (9) years from the effective date of this Agreement, whichever occurs sooner, unless terminated sooner by a Party as provided herein.
4. COST ALLOCATION
A. Fourth Agreement, Article 12(a) costs
The following categories of costs shall be allocated 51.7121% for the City and 48.2879% for the Districts:
• Such studies relating to the fishery of the Tuolumne River as may be required by FERC, including those ordered under (1) the Order on Ten-Year Summary Report Under Article 58 (123 FERC ¶62,012) issued April 3, 2008, (2) the Order On Rehearing, Amending License, Denying Late Intervention, Denying Petition, and Directing Appointment of a Presiding Judge for a Proceeding on Interim Conditions (128 FERC ¶61,035), issued July 16, 2009, as amended; (3) the Order Modifying and Approving in Part Tuolumne River Oncorhynchus Mykiss Ten-Year Monitoring Report Pursuant to Article 58 (131 FERC ¶ 62,097), issued May 10, 2010; and (4) the Order Modifying and Approving Instream Flow and Water Temperature Model Study Plans (131 FERC ¶ 62,110), issued May 12, 2010;
• Proceedings before FERC resulting from such studies;
• Any facilities or programs that may be instituted as a consequence of such studies or proceedings;
• Fish-related expenses and costs arising under studies required by, or orders issued by, FERC for relicensing of the Project.
B. Funding Obligations Under the FERC Settlement Agreement and FERC Order Amending License and Dismissing Rehearing Requests issued July 31, 1996 ("1996 Order") (1) The following categories of costs arise under the 1995 FERC Settlement Agreement or the 1996 Order:
• The balance of funds to be provided by the Parties under Article 12(g)(1) of the Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
FERC Settlement Agreement; and
• Monitoring information to be documented in annual reports under Article 15 of the 1995 FERC Settlement Agreement and Article 58 of the 1996 Order. (2) In the Non-Flow Side Agreement, the Parties disagree as to whether these costs are subject to the Fourth Agreement. The City contends these costs are not subject to the Fourth Agreement; the Districts contend they are. Without waiving those arguments, or the right of any party to challenge whether such costs are subject to the Fourth Agreement, the Parties have agreed in the Non-Flow Side Agreement that those costs shall be allocated 51.7121% for the City and 48.2879% for the Districts.
(3) The Districts acknowledge that San Francisco has satisfied its funding obligations under Section 13 of the FERC Settlement Agreement and the Non-Flow Side Agreement.
C. Other Fish Habitat Studies, Monitoring and Reports
(1) These categories of costs shall be allocated one-third (33.33%) to the City and two-thirds (66.67%) to the Districts. The Parties agree that this allocation shall not be construed in any way as modifying any provision under the Fourth Agreement. Unless otherwise agreed by the Districts, the Districts’ share shall be allocated 68.46% to TID and 31.54% to MID. This category shall include fish habitat studies, monitoring, and reports on the Tuolumne River that the Parties agree are useful or necessary in order to develop information in advance or in assistance of FERC relicensing of the Project. This category shall include such measures voluntarily undertaken by the Parties that are not the subject of a FERC order. (2) Lower Tuolumne Fish Counting Weir. The costs for materials, equipment, and installation of the Lower Tuolumne Fish Counting Weir and the project’s annual operation and maintenance expenses shall be allocated as follows: one-third to the City; one-third to TID; one-third to MID. The Parties agree that this allocation shall not be construed in any way as modifying any provision under the Fourth Agreement or any agreement between TID and MID. This activity shall continue in effect for each year unless and until any Party notifies the other Parties in writing that it is terminating its participation in the activity; such notice must be given by July 31 to be in effect for the then upcoming and subsequent salmonid spawning seasons. By terminating its participation in the activity, the terminating Party agrees that the ownership of the materials and equipment shall be allocated to the non- terminating Parties without any payment to the terminating Party.
D. Other Non-flow Projects or Programs
(1) Fish and Wildlife Service Memorandum of Understanding. On August 24, 2021, the Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
Parties entered into a separate memorandum of understanding, titled Pilot Project Memorandum of Understanding between U.S. Fish and Wildlife Service, Turlock Irrigation District, Modesto Irrigation District, and the City and County of San Francisco for Implementation of a Pilot Project to Improve Habitat on the Lower Tuolumne River (“Pilot Project MOU”). The Parties provided $4,000,000 in capital contributions to fund any habitat improvement projects that they voluntarily undertook prior to issuance of a FERC license.
Funding contributions were allocated one-third (33.33%) to the City and two-thirds (66.67%) to the Districts. The Parties further agreed that this allocation shall not be construed in any way as modifying any provision under the Fourth Agreement. The Districts’ share of these costs were allocated 50% to TID and 50% to MID. The City contributed an amount not-to- exceed $1,500,000. As of 2024, the U.S. Fish and Wildlife Service and the Parties had successfully collaborated to construct a habitat improvement project near Old La Grange Bridge.
(2) Additional Habitat Improvement Projects. Subject to the unanimous prior written consent of all Parties and Section 8 of this Agreement, the Parties may voluntarily plan, design, or construct Additional Habitat Improvement Projects prior to issuance of a new FERC license for the Don Pedro Project. Funding contributions for all such Additional Habitat Improvement Projects shall be allocated one-third (33.33%) to each Party. The Parties further agree that this allocation shall not be construed in any way as modifying any provision under the Fourth Agreement.
E. Reallocation of Costs Under Certain Circumstances
The Parties agree that a cooperative and proactive approach to fish studies, monitoring, projects, and programs in the Tuolumne beyond what may be ordered by FERC will benefit fish and thereby reduce the risk to the Parties' respective water supplies that could arise under FERC relicensing. In recognition of the advantages to be gained by cooperation, the Parties agree to abide by the decisions of the Management Committee formed under Section 5 of this Agreement as to the allocation of costs under this Agreement; provided that if FERC orders the Districts to undertake fishery studies, construct facilities, or implement programs that are already the subject of a decision by the Management Committee to allocate as a Section 4C or 4D cost, then such fishery study, facility, or program shall upon such order be funded at that point forward as an expense under Section 4A.
F. Non-Waiver of Rights and Reservation of Claims
(1) The Parties agree that this Agreement shall not in any way be construed as modifying or Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
changing any provision of the Fourth Agreement. No Party waives its right to challenge whether the costs described in Section 4 are subject to the Fourth Agreement or any other Don Pedro Existing Agreement provided such Party has terminated its participation in this Agreement, except that the Parties waive their respective right to challenge the specific dollar amounts set forth in Subsections 4A, 4B(4), and 4C(3) and the amounts paid by San Francisco under Sections 12 and 13 of the FERC Settlement Agreement and the Non-Flow Side Agreement. Except for the purpose of enforcing the terms and conditions of this Agreement as between and among the Parties, nothing herein shall establish any facts or precedents as among the Parties in any proceeding to allocate these costs or future similar costs. (2) The Parties agree that any action to challenge a cost or costs described in Section 4 and invoiced by the Paying Agent must be commenced within four (4) years of the date of the invoice to the challenging Party containing any such cost or costs. The Parties further agree that the two-year period for notifying the Paying Agent of any error in accordance with Section 9 shall not extend in any way the above four-year limitation period.
G. Maximum Costs Allocable to San Francisco; Controller Certification (1) In no event shall the total cumulative amount of costs and expenses allocable to San Francisco pursuant to and under the term of this Agreement exceed $9,500,000. (2) Certification of Funds; Budget and Fiscal Provisions; Termination in the Event of Non- Appropriation. This Agreement is subject to the budget and fiscal provisions of the San Francisco City Charter. Charges will accrue only after prior written authorization certified by the Controller, and the amount of San Francisco’s obligation hereunder shall not at any time exceed the amount certified for the purpose and period stated in such advance authorization.
This Agreement will terminate without penalty, liability or expense of any kind to San Francisco at the end of any fiscal year if funds are not appropriated for the next succeeding fiscal year. If funds are appropriated for a portion of the fiscal year, this Agreement will terminate, without penalty, liability or expense of any kind at the end of the term for which funds are appropriated. San Francisco has no obligation to make appropriations for this Agreement in lieu of appropriations for new or other agreements. San Francisco budget decisions are subject to the discretion of the Mayor and the Board of Supervisors. MID’s and TID’s assumption of risk of possible non-appropriation is part of the consideration for this Agreement.
(3) Guaranteed Maximum Costs. San Francisco’s payment obligation to MID and/or TID cannot at any time exceed the amount certified by San Francisco’s Controller for the purpose and period stated in such certification. Absent an authorized Emergency per the San Francisco Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
City Charter or applicable Code, no San Francisco representative is authorized to offer or promise, nor is San Francisco required to honor, any offered or promised payments to MID and/or TID under this Agreement in excess of the certified maximum amount without the Controller having first certified the additional promised amount and the Parties having modified this Agreement.
5. MANAGEMENT COMMITTEE
The Management Committee shall consist of the general managers of SFPUC, TID, and MID, or their designees. The Management Committee shall make decisions by unanimous consensus.
The Management Committee shall determine policy and make financial decisions regarding fish matters in the Tuolumne River related to FERC relicensing of the Don Pedro Project. The Management Committee shall resolve disputes between the Parties as to the categorization and allocation of expenses. The Management Committee shall approve an estimated annual project budget annually by July 31 of each year, until relicensing is completed. The Management Committee shall approve an annual budget for anticipated studies, programs and projects for the calendar year by July 31 of each successive year until termination of this Agreement. The approved budget shall list each approved study, program, project, or other activity and shall indicate if each such budget item is a Section 4A, 4C or 4D expense.
The Management Committee shall unanimously appoint a chair for the Advisory Committee described in Section 6. The Advisory Committee chair shall run meetings of the Advisory Committee, prepare the annual report and budgets, and submit recommendations and disagreements of the Advisory Committee to the Management Committee for consideration or resolution. The Management Committee shall meet at least once annually by July 31 of each year to receive a report on the previous year's activities, and adopt a budget for the upcoming calendar year. The Management Committee shall meet upon request by the Advisory Committee chair or a member of the Management Committee to resolve disputes or consider other matters.
6. ADVISORY COMMITTEE
The Advisory Committee is comprised of the Advisory Committee chair and each Party’s individual designees who have expertise in the law, regulatory permitting, engineering, water supply planning, biology, or any other area of expertise that may be necessary or useful as determined by a Party. The Advisory Committee will develop and recommend:
a. flow and non-flow measures for fish habitat;
b. fish monitoring, including such studies as may be required by FERC; c. adaptive management strategies.
Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
The Advisory Committee shall develop and recommend the project and annual budgets. The Advisory Committee will strive to reach consensus on recommendations for flow and non-flow measures and other fishery matters for consideration by the Management Committee. A Party may bring a measure to the Management Committee for consideration that has not been agreed to by consensus so long as it has been first considered by the Advisory Committee.
The Advisory Committee may consult with the Tuolumne River Technical Advisory Committee and other parties.
7. CONTRACTING AND PAYING AGENT; INVOICES
A. The Parties shall designate TID or MID as the contracting and paying agent (“Paying Agent”) for the parties for work performed under this Agreement. The Parties may designate the same or a different Paying Agent for each item identified in the annual budget. Unless the Management Committee elects the invoicing structure described in Section 7.B of this Agreement, the Paying Agent shall not be required to advance funds for the payment of such costs on behalf of the other parties. The Parties shall make annual and, if necessary, more frequent deposits with the Paying Agent to cover anticipated costs of studies, programs, or projects covered under this Agreement. The Paying Agent shall be limited to the making of expenditures or incurring of liabilities in the amount of the appropriations allowed by the budget as adopted by the Management Committee in accordance with its adopted procedural rules for expenditures and obligations. The Paying Agent shall provide monthly statements to the Parties of fund balances and invoices paid that reflect each party's share of actual costs to be paid under Section 4 of this Agreement. The Paying Agent shall submit with each monthly statement supporting information and documentation that establishes the basis for the charges, including identifying the allocations given to each party.
Billing disputes will be resolved in accordance with Section 9.
B. Notwithstanding any payment structure described in Sections 7.A and 7.C of this Agreement, on or before July 31 of each year, the Management Committee, in consultation with the Paying Agent, may elect for the Paying Agent to submit quarterly invoices to the Parties. Each quarterly invoice shall incorporate supporting documentation that establishes the basis for each Party's charges and allocations under this Agreement. A summary shall accompany each quarterly invoice that itemizes the annual budget for each activity and project funded by this Agreement, as well as the amount of each Party’s contributions actually spent on each activity or project in the budget year and up to the date of the quarterly invoice. Subject to Sections 4(G)(2) and 9 of this Agreement, a Party shall disburse to the Paying Agent any undisputed amount stated in an invoice within 60 days of receipt of the invoice.
C. Unless the Management Committee elects the invoicing structure described in Section Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
7.B of this Agreement, within thirty [30] days after the Management Committee approves the annual budget for a calendar year, each Party shall advance their respective share of funds to the Paying Agent.
D. No later than the last day in February of each year, the Paying Agent shall submit any unpaid invoices received by Paying Agent from consultants to each Party for work performed during the prior calendar year. Upon receipt of a request for an extension from the Paying Agent that describes the basis for the delay, each Party may authorize an extension of up to 3 months for the Paying Agent to submit the prior year’s invoices to the Party.
8. ENVIRONMENTAL REVIEW
This Agreement sets forth the Parties’ process for decision-making and cost allocation for studies, programs, and projects related to certain fishery matters affected by FERC proceedings on the Tuolumne. These studies, programs, and projects could result in physical changes to the environment, and may require the Parties to prepare environmental documents in accordance with the California Environmental Quality Act (“CEQA”) prior to determining whether to proceed with any of the studies, programs, or projects. Accordingly, and notwithstanding any provision of this Agreement to the contrary, the Parties acknowledge that nothing in this Agreement can commit the Parties to approve or carry out any project that is subject to CEQA until such environmental review is complete and the Parties individually and collectively approve the project, as required by law. In considering any proposed project, the Parties thus retain discretion to: (1) make such modifications to any of the proposed projects as may be necessary to mitigate significant environmental impacts; (2) select feasible alternatives to the proposed projects that avoid significant adverse impacts; (3) require the implementation of specific measures to mitigate the significant adverse environmental impacts as part of the decision to approve the project; (4) balance the benefits of the proposed projects against any significant environmental impacts before taking final actions to approve the proposed projects if such significant impacts cannot otherwise be avoided; or (5) determine not to proceed with the proposed projects. The Parties acknowledge that each Party may need to seek authorization from its individual governing body for implementation of specific projects that may be instituted as a consequence of the studies and proceedings contemplated in this Agreement.
9. BILLING AND ALLOCATION DISPUTES
If San Francisco, TID or MID disputes the amount due under any invoice rendered by the Paying Agent, or the allocation of costs to a Party under Section 4, the disputing party shall provide to the Paying Agent, in writing, notice of the amount in dispute and the specific basis for the dispute. The Parties shall meet, or otherwise discuss as mutually agreed, within thirty (30) days after Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
receipt of notice, or by mutual agreement on the earliest possible date thereafter, to attempt to agree on any adjustments that may be appropriate. If the parties to the dispute do not agree within this thirty-day period, as it may be extended by mutual agreement, a party may seek legal redress.
If the Paying Agent is not notified of any error in an invoice within two (2) years from the payment due date of the invoice, such invoice shall be deemed to be correct, without recourse by any party.
10. TERMINATION
The General Manager, and/or their designee, of each Party may terminate this Agreement upon giving the other Parties sixty (60) days prior written notice of termination unless terminated sooner by mutual agreement of all Parties; provided, however, that each Party shall be obligated for its share of all contractual or tort liabilities, damages, claims, and expenses to third parties accrued, obligated or incurred prior to the effective date of such termination (collectively, “third-party claims and liabilities”). Any funds remaining from funds advanced under Section 7 shall be returned to the terminating Party minus all funds (if any) needed as a provision for all such third-party claims and liabilities. The terminating Party acknowledges that it may be required by the Paying Agent to advance additional funds as provision for such third party claims and liabilities and the terminating Party agrees to advance such additional funds. In addition, each Party shall be obligated for its share of any liabilities, damages, claims, expenses or contractual adjustments to, by or between the Parties accrued, obligated or incurred prior to the effective date of such termination.
11. SEVERABILITY
In the event that any of the terms, covenants or conditions of this Agreement or the application of any such term, covenant or condition shall be held invalid as to any person or circumstance by any court having jurisdiction, all other terms, covenants or conditions of this Agreement and their application shall not be affected thereby, but shall remain in force and effect unless a court holds that the provisions are not separable from all other provisions of this Agreement.
12. THIRD PARTY RIGHTS
This Agreement is for the sole benefit of the Parties and shall not be construed as granting rights to any person other than the Parties or imposing obligations on any party or granting rights to any person other than a Party.
13. APPLICABLE LAWS; VENUE
Except as otherwise required by law, this Agreement is made under and shall be deemed to Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
be governed by the laws of the State of California or the laws of the United States, as applicable. In the event of a dispute pertaining to this Agreement, should it be determined that state court is the appropriate forum, the parties agree that the venue for such dispute shall be Sacramento, California.
14. EXAMINATION OF RECORDS; DELIVERY OF DOCUMENTS AND DATA; A. Authorized representatives of each Party will be permitted upon reasonable notice and at reasonable times to visit the offices of the other Party and to examine and copy all records and papers pertaining to this Agreement, provided that any records and papers which are exempt from disclosure shall be properly safeguarded by each Party so as to ensure their continued exempt status.
Each Party agrees, upon request by the other Party, to make, execute and deliver any and all documents and data reasonably required to implement this Agreement.
B. Any contract entered into by the Paying Agent pursuant to subsections 4.C or 4.D, and after the effective date of this Agreement shall provide that the contractor(s) to such contract(s) shall indemnify and hold the Parties to this Agreement harmless from all loss and liability, including attorneys’ fees, court costs and all other litigation expenses for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark, and all other intellectual property claims of any person or persons arising directly or indirectly from the receipt by the Parties, or any of their officers or agents, of the contractor’s services.
15. AMENDMENT
Neither this Agreement nor any terms hereof may be amended, supplemented, waived or modified except by an instrument in writing approved in the same form as this Agreement and executed by the SFPUC’s General Manager, TID's General Manager, and MID’s General Manager.
16. NOTICES
Any notice, demand or request provided for in this Agreement shall be in writing and shall be deemed properly served, given or made if delivered in person or sent via email or by first class United States mail, postage prepaid, to:
To City: General Manager
San Francisco Public Utilities Commission
525 Golden Gate Avenue
San Francisco, California 94102
[Email]
To TID General Manager
Turlock Irrigation District 333 East Canal Drive
Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
P.O. Box 949
Turlock, California 95381-0949
[Email]
To MID: General Manager
Modesto Irrigation District
1231 Eleventh Street
P.O. Box 4060
Modesto, California 96352
[Email]
The names and addresses of the above recipients may be changed by appropriate notice from one Party to the others.
17. EXECUTION IN COUNTERPARTS
The Parties agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in triplicate by their respective officers thereunto duly authorized on this day of 2026.
MID: MODESTO IRRIGATION DISTRICT,
By: ________________________________
Name: ______________________________
Title: _______________________________
Date Signed: _________________________
TID: TURLOCK IRRIGATION DISTRICT,
By: ________________________________
Name: ______________________________
Title: _______________________________
Date Signed: _________________________
SFPUC: CITY AND COUNTY OF SAN FRANCISCO, a municipal
corporation acting by and through the SAN FRANCISCO
PUBLIC UTILITIES COMMISSION,
By: ________________________________
Name: ______________________________
Title: _______________________________
Date Signed: _________________________
Approved as to Form:
City Attorney
Agreement Between SFPUC, TID, and MID for Fish-Related FERC Relicensing Costs
By: _________________________________
Deputy City Attorney