CSPA
Merced River
Part One of Nine
Subject: Merced River - Part 1
Date: Sun, 19 Jul 1998 20:24:12 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: extensive email listing
United States of America
Before the Federal Energy Regulatory Commission
New Exchequer Project; FERC Project No. 2179
Merced Irrigation District, Licensee
Merced River, Tributary to San Joaquin River thence Bay Delta Estuary
thence Pacific Ocean
State of California
Pending Complaint by California Sportfishing Protection Alliance Before
the Federal Energy Regulatory Commission Against Merced Irrigation
District
Formal Response by California Sportfishing Protection Alliance to
Allegations Made by Merced Irrigation District on June 19, 1998
On June 19, 1998, Counsel for the Merced Irrigation District
(hereinafter known as "MID") made a written submittal to Secretary David
Boergers of the Commission regarding a formal complaint filed with the
Commission by the California Sportfishing Protection Alliance
(hereinafter known as "CSPA") against the Merced Irrigation District,
licensee, for the New Exchequer Project No. 2179.
The following is the formal response of the CSPA:
1. On February 17, 1998, the Commission took formal written action and
requested the MID to respond in writing to the CSPA complaint which was
filed with the Commission over two years ago.
2. On April 16, 1998, the MID provided an "interim" letter to the Office
of Hydropower licensing regarding a formal complaint filed by the CSPA
against MID. The "internal" letter did not respond specifically to the
CSPA complaint.
3. Also, on April 16, 1998, MID requested an extension of 60 days from
the Commission to respond to the CSPA complaint. The extension of time
was granted by the Commission on April 29, 1998 by the Director of the
Office of Hydro Licensing.
4. On June 19, 1998, in a letter to the Secretary of the Commission, MID
did response within the 60 day period granted by the Commission.
However, MID's answer to the Commission did not answer the specific
points of the CSPA complaint.
Vernalis Adaptive Management Plan
5. On June 19, 1998, MID provided it's verbal self-serving
interpretation of the Vernalis Adaptive Management Plan (VAMP). MID made
a wild claim that the VAMP would be approved by the California State
Water Resources Control Board. We disagree. The Commission's staff
should consult directly with the staff of the California State Water
Resources Control Board to determine the validity of MID's statements
concerning the approval of VAMP by the California State Water Resources
Control Board.
6. As an enclosure to MID's June 19, 1998 letter to the Secretary of the
Commission, MID included a copy to the Commission of the not yet
approved and not yet signed San Joaquin River Agreement. The copy of the
San Joaquin River Agreement was not signed by any or all of the parties.
Consequently, San Joaquin River Agreement should not be used as evidence
by the Commission in dealing with the CSPA complaint.
The U.S. National Marine Fisheries Service (USNMFS) is the responsible
federal fish and wildlife agency who's duty it is to protect threatened
and endangered species in the San Joaquin River watershed and the Bay
Delta Estuary, protected under the provisions of the federal Endangered
Species Act. The USNMFS is not shown as a party to the signing of the
San Joaquin River Agreement by MID in it's submittal to the Commission.
Consequently, the USNMFS will have to make a biological opinion findings
to determine whether the San Joaquin River Agreement will have any
effects to threatened and endangered species in the Merced River
watershed, San Joaquin River watershed and the Bay Delta Estuary.
It should be noted that the USNMFS will be making a decision regarding
whether to list fall-run chinook species of the Sacramento River and the
San Joaquin River systems (Merced River). The Merced River sustain
fall-run chinook salmon species and their habitat affected by the
operation of the New Exchequer Project 2179.
The CSPA believe that all parties to the San Joaquin River Agreement
who operate water projects would have to consult with the USNMFS
pursuant to the provisions of Section 7 of the federal Endangered
Species Act before the agreement can be adopted by any federal agency.
Section 7 of the federal Endangered Species Act requires Federal
agencies to insure that any action authorized, funded or carried out by
them is not likely to jeopardize the continued existence of listed
species or modify their critical habitat. Action agencies are required
to consult with the USNMFS and/or the USFWS when there is discretionary
Federal involvement or control over the action.
MID operates their project under a federal license issued by the
Commission. The Commission must insure to the public that any action
authorized and carried out by them is not likely to jeopardize the
continued existence of listed species or modify their critical habitat
in the Merced River.
The CSPA believe that MID would have to obtain an incidental take under
Section 7 of the federal Endangered Species Act from the USNMFS or
obtain an incidental take permit subject to Section 10(a)(2)(A) of the
Act.
The CSPA also believe that the USNMFS must make a Section 4(d) of the
federal ESA ruling for threatened steelhead trout of the Central Valley,
which includes the Merced River, before the San Joaquin River Agreement
is adopted and implemented by any state and/or federal agency, which
includes the Commission. The same is true when Merced River fall run
chinook salmon are listed.
7. The California State Water Resources Control Board is presently
holding the Bay Delta Water Rights hearings. The VAMP is controversial
and is being contested by parties at the hearing. Following the
conclusion of the Bay Delta Water Rights Hearings, the California State
Water Resources Control Board should make a decision based on the
hearing record. MID alleged to the Commission that VAMP will be approved
by the California State Water Resources Control Board. That decision
will take time, and VAMP may not be approved by the California State
Water Resources Control Board.
8. As stated by MID in it's letter of June 19, 1998, "The Agreement [San
Joaquin River Agreement] cannot be finally adopted until after the NEPA
and CEQA environmental review processes have been completed, which is
expected to occur in February or March of 1999". The NEPA and CEQA
document for the San Joaquin River Agreement may be challenged in the
courts. Consequently, for MID to submit into the Commission's records an
unsigned agreement that is far from being approved would be extremely
premature and unreasonable.
9. The Commission licensed the New Exchequer Project No. 2179 and other
FERC licensed projects on tributaries to the San Joaquin River. Should
the Commission adopt the San Joaquin River Agreement, the CSPA believes
that the Commission should prepare a NEPA document which discloses,
evaluates, and mitigates the cumulative impacts to public trust fishery
resources below all FERC licensed projects in the San Joaquin River
watershed (Comprehensive San Joaquin River Watershed Plan). The
California State Water Resources Control Board does not have the
authority to determine fish flows below FERC licensed dams. We reference
California v. Federal Energy Regulatory Commission (Rock Creek) (1990)
495 U.S. 490 (1990).
Secondly, the California State Water Resources Control Board has
Section 401 of the Clean Water Act authority to protect the beneficial
uses of the state's water (water quality). We reference PUD No. 1 v.
Washington Department of Ecology (1994( 114 S.Ct.1900. However, the
California State Water Resources Control Board may have waived water
quality certification at some or all FERC licensed projects in the San
Joaquin River watershed.
The California State Water Resources Control Board has prepared the
NEPA-CEQA document for the Bay Delta Water Rights Hearings. It appears
the U.S. Fish and Wildlife Service, and the U.S. Bureau of Reclamation
have turned their federal NEPA authority over to the California State
Water Resources Control Board. However, the CSPA believe, that the
NEPA-CEQA document prepared by the California State Water Resources
Control Board will not satisfy the NEPA requirements of the Commission
to adopt the San Joaquin River Agreement and VAMP.
Should the San Joaquin River Agreement be considered by the Commission,
it should be considered in the form of an amendment to MID license,
subject to motions to intervene, protests, and comments, by interested
parties such as the CSPA, other stakeholders, and state and federal
regulatory agencies.
The CSPA Has Standing
10. The MID claims the CSPA has no standing to seek a license reopener.
The CSPA disagree.
The CSPA filed a formal complaint with the Commission against MID. The
complaint was accepted by the Commission, and the Commission required
the MID to answer the CSPA complaint. The CSPA believe the Commission
should rule on the evidence and the issues in determining whether the
CSPA complaint is valid, which it is, and whether MID failed to comply
to daily environmental flow requirements.
The MID has not provided any evidence at all to the Commission that the
points in the CSPA are not valid. MID has not specifically answered the
specific points in the CSPA complaint. Consequently, the Commission
should require MID to answer the specific points in the CSPA complaint.
The CSPA believe that state law was violated by MID when it failed to
implement flows that were required by the Davis-Grunsky Act contract
agreement between MID and the California Department of Water Resources.
The CSPA believe that the Commission is required by the Federal Power
Act to comply with state law when issuing and regulating FERC licenses.
The Commission should investigate and determine whether MID violated it
FERC license and state law when failing to meet its daily flow
environmental flow requirements.
Flows for the Merced River Public Trust Anadromous Fisheries - The Duty
and Responsibility of the Commission
11. As stated in the CSPA Complaint, in California, fish are the
property of the people and the trustee agencies are required to protect
the fish pursuant to federal and state law. Fish are also public trust
resources and assets in which the trustee has the duty to protect them.
In the case of the Merced River the trustee agency which has the duty
and authority to protect the fish and the ecosystem of the river is the
Federal Energy Regulatory Commission.
The Commission has already reopened a license based on a complaint by
the CSPA. A number of years ago the CSPA and the California Department
of Fish and Game (CDFG) requested the Commission (FERC) to investigate
and correct fishery impacts in the lower Mokelumne River concerning the
operation of FERC Project 2616 [Licensee - East Bay Municipal Utility
District]. The Commission commenced a proceeding to decide whether or
not to modify said project. The Commission's staff recently made
recommendations to modify said project to correct fishery impacts. [We
reference Final Environmental Impact Statement; Proposed Modifications
to the Lower Mokelumne River Project, California; FERC Project 2916-004;
Division of Project Compliance and Administration; Federal Energy
Regulatory Commission; November, 1993] We also reference request by the
CSPA with the FERC to modify FERC Project 2916.
Also, the USNMFS and the USFWS should be given the opportunity to
advise the Commission whether or not to reopen MID's license.
In the case of the CDFG, any agreement reached by MID and CDFG, would
be valid grounds to reopen MID's FERC license in the form of a license
amendment, subject to motions to intervene, protests, and comments by
interested parties.
We believe the Commission has a duty to investigate and correct fishery
impacts and flow violations on the Merced River caused by the operation
of FERC Project No. 2179 by the Merced Irrigation District. We also
believe it is pertinent that the public (stakeholders) must be involved
in the modification of the FERC Project No. 2179. The recent meeting at
Sacramento, California, concerning FERC Project 1962 (Rock Creek-Cresta
Project) clearly shows that non-governmental organizations
(stakeholders) are heavily involved with FERC licensed projects and the
FERC process.
The Merced River Environmental Flow Requirements - The Duty to Meet the
Daily Flow Requirements by MID - The Duty to Enforce the Daily Flow
Requirements by the Commission
12. MID has a duty and responsibility to maintain daily flow
requirements in the Merced River pursuant to its federal license with
the Commission, and also any agreement reached with State of California
agencies. The Commission equally has the duty and responsibility to
enforce the mandatory daily minimum flow requirements. Without
enforcement, compliance of FERC license conditions are meaningless.
As stated in the CSPA Complaint, the present daily flow requirements in
the FERC license for Project No. 2179 to protect and sustain the
fall-run chinook salmon fishery and other fish species and their habitat
of the Merced River by the Merced Irrigation District are not adequate
by any standard. The mandatory daily flow requirements are as follows:
Time Normal Year Dry Year
June 1 - Oct 15 25 cfs 15 cfs
October 16 - October 31 75 cfs 60 cfs
Nov 1 - Dec 31 100 cfs 75 cfs
Jan 1 - May 31 75 cfs 60 cfs
The Davis-Grunsky Agreement (1968) between the MID and the CDWR
requires flow releases of 180 cfs to 220 cfs during Nov 1 to April 1
period annually, plus spring flushing flows.
Dry Year = DWR April - July runoff on May 1 forecast into Exchequer is
less than 450,000 acre-feet AF
Flows to be measured at Shaffer Bridge 5 miles upstream from Cressey.
(We reference Inventory of Instream Flow Requirements Related to Stream
Diversions; page 172, Bulletin 216; December 1982; California Department
of Water Resources)
Consequently as a result of the Davis-Grunsky Agreement the flow
requirements are as follows:
Time Normal Year Dry Year
June 1 - Oct 15 25 cfs 15 cfs
October 16 - October 31 75 cfs 60 cfs
Nov 1 - April 1 180 - 220 cfs 180-220 cfs
April 1 - May 31 75 cfs 60 cfs
(We reference Draft California Water Plan Update; pages 222 and 223;
Volume 1; November 1993; California Department of Water Resources)
The FERC Project 2179 minimum flow requirements for the months of June,
July, August, September and from October 1 to 15 are 25 cfs in normal
years and 15 cfs in dry years. During the ten year period from 1951 to
1960 the lowest daliy flow ever recorded by the USGS near the mouth of
the Merced River was 42 cfs on June 24, 1960. Consequently the FERC
mandatory flow requirements for these four months are 17 cfs and 27 cfs
below the lowest daily minimum flow ever recorded near the mouth of the
river. (We reference USGS Records; Station 2725, Merced River near
Stevinson, California).
We find the mandatory flows for the Merced River are unreasonable and a
giveaway of the public trust resources of the river. Even with those
unreasonable and pitiful mandatory daily minimum flows, the Merced
Irrigation District violated those requirements as we will show you.
The average discharge on the Merced River below the Merced Falls Dam
was 1,359 cfs or 984,600 acre-feet. We reference USGS Station 11270900
Merced River below Merced Falls; 1988) The FERC environmental flow
requirements represents only 73,500 acre-feet or about 7 1/2% of the
average flow below the Merced Falls Dam.
As stated in the CSPA Complaint, the California Department of Fish and
Game is presently conducting fishery studies to determine the amount of
water necessary to protect the fall-run chinook salmon fishery of the
Merced River. Salmon studies are long-term. During the long-term period
and before flow modifications can be made to improve conditions in the
Merced River, the fall-run chinook salmon fishery could decline further
and/or be extinguished. Consequently, we believe there must be interim
flow requirements ordered by the Commission to sustain the salmon
fishery until the Commission orders permanent flow requirements.
Flow past the USGS Shaffer gauge consist of releases from diversion dam
(Main Canal), irrigation return flows and tributary inflow. (Emphasis
Added) The following are the FERC Project 2179 environmental flow
requirements at the Shaffer Bridge USGS gauge:
October 1-14 - The present meager flows of 25 cfs for normal years and
15 cfs for dry years during this period are inadequate to protect and
sustain the chinook salmon fishery and other fish species and their
habitat of the Merced River. If these flows were adequate the fall-run
and spring-run chinook salmon fisheries would be at levels comparable to
pre-project conditions.
October 15-31 - The present meager flows of 75 cfs for normal years and
60 cfs for dry years are inadequate to protect and sustain the chinook
salmon fishery and other fish species and their habitat of the Merced
River. If these flows were adequate the fall-run and spring-run chinook
salmon fisheries would be at levels comparable to pre-project
conditions.
The pre-project flow during the month of October was 170 cfs (mean),
and ranged from 103 cfs to 237 cfs. (We reference USGS Records; Station
2725, Merced River near Stevinson, California; 1951 to 1960)
Chinook salmon adult migration, spawning and egg incubation should
occur during this period.
MID did not state in its answer of June 19, 1998 to the Commission and
its staff whether the daily flow requirement during this period were
adequate, and whether the daily flow requirement did in fact sustain the
chinook salmon fishery and their habitat of the Merced River affected by
the project.
November and December - The present flows of 180 to 220 cfs for normal
years and also for dry years are not adequate to protect and sustain the
chinook salmon fishery and other fish species and their habitat. If
these flows were adequate the fall-run and spring-run chinook salmon
fisheries would be at levels comparable to pre-project conditions.
The controlling factor concerning flow requirements during November 1
to April 1 is governed by a Davis-Grunsky agreement between the Merced
Irrigation District and the California Department of Water Resources.
The California Department of Water Resources has no authority to set
flow requirements at FERC licensed projects in California. That
authority lies solely with the Commission.
The pre-project flow during the month of November was 175 cfs (mean),
and ranged from 105 cfs to 479 cfs. (We reference USGS Records; Station
2725, Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of December was 872 cfs (mean),
and ranged from 132 cfs to 4,718 cfs. (We reference USGS Records;
Station 2725, Merced River near Stevinson, California; 1951 to 1960)
Chinook salmon adult migration, spawning and egg incubation should
occur during this period, also with fry emergence and
rearing/emigration.
MID did not state in its answer of June 19, 1998 to the Commission and
its staff whether the daily flow requirement during this period were
adequate, and whether the daily flow requirement did in fact sustain the
chinook salmon fishery and their habitat of the Merced River affected by
the project.
January to March - The present flows of 180 to 220 cfs for normal years
and also for dry years are inadequate to protect and sustain the chinook
salmon fishery and other fish species and their habitat of the Merced
River. If these flows were adequate the fall-run and spring-run chinook
salmon fisheries would be at levels comparable to pre-project
conditions.
The pre-project flow during the month of January was 1,020 cfs (mean),
and ranged from 145 cfs to 4,568 cfs. (We reference USGS Records;
Station 2725, Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of February was 717 cfs (mean),
and ranged from 172 cfs to 2,096 cfs. (We reference USGS Records;
Station 2725, Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of March was 778 cfs (mean), and
ranged from 131 cfs to 1,939 cfs. (We reference USGS Records; Station
2725, Merced River near Stevinson, California; 1951 to 1960)
Chinook salmon adult migration, spawning and egg incubation should
occur during January, along with fry emergence and rearing/emigration.
During February and March egg incubation, fry emergence and
rearing/emigration should occur.
MID did not state in its answer of June 19, 1998 to the Commission and
its staff whether the daily flow requirement during this period were
adequate, and whether the daily flow requirement did in fact sustain the
chinook salmon fishery and their habitat of the Merced River affected by
the project.
April and May - The present meager flows of 75 cfs for normal years and
60 cfs for dry years are inadequate to protect and sustain the chinook
salmon fishery and other fish species and their habitat of the Merced
River. If these flows were adequate the fall-run and spring-run chinook
salmon fisheries would be at comparable to during pre-project
conditions.
The pre-project flow during the month of April was 1,028 cfs (mean),
and ranged from 135 cfs to 5,792 cfs. (We reference USGS Records;
Station 2725, Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of May was 1,931 cfs (mean), and
ranged from 131 cfs to 1,939 cfs. (We reference USGS Records; Station
2725, Merced River near Stevinson, California; 1951 to 1960)
Chinook salmon juvenile and emigration migration should occur during
this period.
MID did not state in its answer of June 19, 1998 to the Commission and
its staff whether the daily flow requirement during this period were
adequate, and whether the daily flow requirement did in fact sustain the
chinook salmon fishery and their habitat of the Merced River affected by
the project.
June to September - The present meager flows of 25 cfs for normal years
and 15 cfs for dry years are inadequate to protect and sustain the
chinook salmon fishery and other fish species and their habitat of the
Merced River. If these flows were adequate the fall-run and spring-run
chinook salmon fisheries would be at levels comparable to pre-project
conditions.
The pre-project flow during the month of June was 1,345 cfs (mean), and
ranged from 90 cfs to 4,145 cfs. (We reference USGS Records; Station
2725, Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of July was 250 cfs (mean), and
ranged from 77 cfs to 609 cfs. (We reference USGS Records; Station 2725,
Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of August was 171 cfs (mean), and
ranged from 96 cfs to 267 cfs. (We reference USGS Records; Station 2725,
Merced River near Stevinson, California; 1951 to 1960)
The pre-project flow during the month of September was 193 cfs (mean),
and ranged from 77 cfs to 311 cfs. (We reference USGS Records; Station
2725, Merced River near Stevinson, California; 1951 to 1960)
MID did not state in its answer of June 19, 1998 to the Commission and
its staff whether the daily flow requirement during this period were
adequate, and whether the daily flow requirement did in fact sustain the
chinook salmon fishery and their habitat of the Merced River affected by
the project.
For further information contact Bob Baiocchi at either 530-836-1115 or
at e-mail address: cspa@psln.com