Merced River Protest
Subject: Merced River - FERC - Flows - Water Quality
Date: Mon, 30 Mar 1998 23:07:38 +0000
From: BOB BAIOCCHI <cspa@psln.com>
Organization: CSPA
To: CSPA Board of Directors, via email
BOB BAIOCCHI, CONSULTANT
P.O. BOX 357
QUINCY, CA 95971
BUS TEL: 530-836-1115
FAX: 530-836-2062
Ms. Jacqueline Schafer, Director March 30, 1998
California Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
Mr. George Nokes, Regional Manager
Region 4
California Department of Fish and Game
1234 East Shaw Avenue
Fresno, CA 93710
Re: Merced River, Tributary to San Joaquin River thence San Francisco
Bay Delta Estuary; New Exchequer Project; FERC Project No. 2179-024;
Merced Irrigation District; Federal Energy Regulatory Intervention of
February 17, 1998; Request for Formal Actions and Information From the
California Department of Fish and Game by the California Sportfishing
Protection Alliance, Petitioner.
Dear Ms. Schafer and Mr. Nokes:
On April 11, 1995, the California Sportfishing Protection Alliance
(CSPA) filed a petition and a request with the Federal Energy Regulatory
Commission (FERC) to modify the New Exchequer Project FERC Project No.
2179 and have FERC order improved fishery protection measures, and also
to enforce penalties against the Merced Irrigation District for
violations.
A copy of the CSPA petition of April 11, 1998 was forwarded to Mr. John
Turner, former supervisor, Environmental Services, of the California
Department of Fish and Game (CDFG). To the best of my knowledge, the
CDFG did not follow-up and request the FERC to enforce the FERC license
requirements, nor did the CDFG formally file a petition and request FERC
to modify the project to improve fishery protection measures at the New
Exchequer Project FERC 2179.
On February 17, 1998, the FERC advised the Merced Irrigation District
(MID), licensee, the CDFG, and the CSPA about the CSPA petition and
requested a status of any negotiations between MID and CDFG, including
recommendations. To date I have not received any formal letters or memos
from MID and the CDFG regarding the status of the negotiations for the
subject federally licensed project.
On March 13, 1998, the CSPA submitted a letter concerning this matter
to the CDFG, FERC, U.S. Fish and Wildlife Service (USFWS), U.S. National
Marine Fisheries Service (USNMFS), and the California State Water
Resources Control Board (CSWRCB), and requested 12 recommendations be
implemented by the FERC.
To date, I have not received any letters or memos from the Region 4
office of the CDFG, and also from MID, licensee, regarding the status of
negotiations between CDFG and MID regarding the CSPA letter of March 13,
1998. A copy of that letter was forwarded to CDFG Regional Manager Mr.
George Nokes of Region 4 at Fresno, California.
I was recently advised that the MID and CDFG arranged meetings for FERC
Project No. 2179-024, which were held last week between the parties. It
is my understanding that a draft agreement between the CDFG and MID was
the purpose of the meetings last week.
The CSPA, petitioner, was not invited to the meetings between the CDFG
and the MID last week, and also, prior to last week. The CSPA is
requesting timely notices of all meetings pertaining to the MID-CDFG
draft and final agreement, and also to the subject project, from the
CDFG.
It is my further understanding that a copy of the draft agreement was
requested from the CDFG at Region 4 by an interested non-governmental
party, but the interested party was denied a copy of the draft
agreement. That interested party advised me that a copy of the final
agreement would be given to the interested party after it was signed by
the CDFG and MID.
On behalf of the CSPA, I am requesting a copy of the draft agreement,
and also the final agreement before the agreement is signed by the CDFG.
The CSPA and the public should be allowed to review and comment on the
final agreement before it is signed by CDFG. The CSPA's specific concern is that the terms and conditions of the final agreement are in full compliance with state and federal statutes and regulations, and that the terms and conditions of the final agreement will in fact improve and protect the public trust anadromous fisheries, and other fish and wildlife resources, and water quality, of the Merced River Watershed.
Steelhead trout of the Central Valley have been listed as threatened by
the U.S. National Marine Fisheries Service under the protection of the
provisions of the federal Endangered Species Act. The Merced River
sustains steelhead trout.
Fall-run and late fall-run chinook salmon of the Central Valley are
being proposed for listing by the U.S. National Marine Fisheries Service
under the protection of the provisions of the federal Endangered Species
Act. The Merced River sustains fall-run chinook salmon.
Spring-run chinook salmon of the Central Valley are being proposed for
listing by the U.S. National Marine Fisheries Service under the
protection of the provisions of the federal Endangered Species Act. The
Merced River did sustain spring-run-run chinook salmon, but this species
was extinguished by MID's New Exchequer Project (FERC Project 2179), and
also the former dam.
MID and CDFG should consult with the U.S. National Marine Fisheries
Service before the final agreement is signed which determines whether
the final agreement is in full compliance with the provisions of the
federal Endangered Species Act.
The final agreement has the potential to affect fish and wildlife
resources protected under the provisions of the federal Endangered
Species Act under the authority of the U.S. Fish and Wildlife Service.
MID and CDFG should consult with the U.S. Fish and Wildlife Service
before the final agreement is signed which determines whether the final
agreement is in full compliance with the provisions of the federal
Endangered Species Act.
The draft agreement concerns a federally licensed project. The
authority in approving the final agreement is the FERC. The CSPA
believes before the final agreement is signed by MID and CDFG that it
should be subject to the FERC NEPA process, and also subject to
petitions of interventions, comments and protests to FERC by state and
federal agencies, and non-governmental parties and the public.
As stated beforehand. the draft agreement concerns a federally licensed
project. Before the final agreement is signed, MID and CDFG should
consult with the U.S. Fish and Wildlife Service pursuant to the U.S.
Fish and Wildlife Coordination Act, and obtain comments and
recommendations from U.S. Fish and Wildlife Service.
The final agreement has the potential to violate the provisions of the
federal Clean Water Act. The authority under Section 401 of the Clean
Water Act is the California State Water Resources Control Board. Before
the final agreement is signed, MID and CDFG should consult with the
California State Water Resources Control Board pursuant to Section 401
of the federal Clean Water Act, and obtain comments and recommendations
from California State Water Resources Control Board concerning the final
unsigned agreement to protect the beneficial uses of the state's water,
which includes water quality and aquatic species.
The people of California own the state's water, including the public
trust fish and wildlife resources of the State of California. The public
should be given the opportunity to review and comment on the final
agreement before it is signed. That would be reasonable and would be in
the public interest.
The California Environmental Quality Act and its Guidelines should
apply to the final agreement because it has the potential to adversely
impact the public trust resources effected by the operations of the
project.
The CDFG has prepared CEQA documents. i.e. Davis Lake.
Section 21001 of CEQA states "The Legislature further finds and
declares that it is the policy of the state to:"
Section 21001 (f) of CEQA states "requires governmental agencies at all
levels to develop standards and procedures necessary to protect
environmental quality".
The CSPA believes CDFG must follow state law and adopt standards and
procedures in carrying out the provisions of the California
Environmental Quality Act and its Guidelines so that environmental
quality is protected.
Please forward a copy of the standards and procedures adopted by the
CDFG pursuant to Section 21001 (f) of CEQA.
Please advise me whether MID or CDFG will prepare a CEQA document for
the proposed agreement before it is signed. Please cite specific
sections of CEQA and its Guidelines should MID and CDFG determine they
are exempt from CEQA.
It appears that part of the New Exchequer Project FERC Project No. 2179
is located on federal land administered by the U.S. Forest Service. The
U.S. Forest Service has 4-E authority concerning projects licensed by
the FERC. MID and CDFG should consult with the U.S. Forest Service
before the final agreement is signed, and obtain comments and
recommendations from the U.S. Forest Service.
Pursuant to the Public Information Act, please forward to me copies of
all letters and memos between the CDFG and MID concerning the New
Exchequer Project FERC No. 2178 during the past year.
A written response is requested and appreciated.
Respectfully Submitted
________________________________________
Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
P.O. Box 357
Quincy, CA 95971
Service List
Mr. David Boergers, Acting Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
(7 Copies)
Ms. Carol L. Sampson, Director
Office of Hydropower Licensing
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
Mr. Noel Folsom, Regional Director
Federal Energy Regulatory Commission
901 Market Street, Suite 350
San Francisco, CA 94103
Ms. Jacqueline Schafer, Director
California Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
Mr. George Nokes, Regional Manager
Region 4
California Department of Fish and Game
1234 East Shaw Avenue
Fresno, CA 93710
Ms. Nancee Murray, Esquire
Legal Affairs Division
California Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814
Mr. Mike Sherwood, Esquire
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite 1725
San Francisco, CA 94104-4209
Ms. Susan Boring, Biologist
U.S. Fish and Wildlife Service
3310 El Camino Avenue, Suite 130
Sacramento, CA 95821-6340
Mr. James Lecky, Chief
Protected Species
U.S. National Marine Fisheries Service
501 West Ocean Blvd. Suite 4200
Long Beach, CA 90802-4213
Mr. Jim Canaday, CWA 401 Coordinator
California State Water Resources Control Board
Division of Water Rights
P.O. Box 2000
Sacramento, CA 95812-2000
Mr. Jim Bybee, Supervisor
U.S. National Marine Fisheries Service
777 Sonoma Avenue
Santa Rosa, CA 95404
Ms. Jennifer Vick
2532 Durant Avenue
Suite 201
Berkeley, CA 94704
Mr. Richard Roos-Collins, Esquire
Counsel for CHRC
NHI
114 Sansome Street
San Francisco, CA 94104
Mr. John Gangemi, Conservation Director
American Whitewater Affiliation
782 Swan River Road
Bigfork, MT 59911
Ms. Maureen Rose, Representative
Friends of the River
128 J Street, 2nd Floor
Sacramento, CA 95814
Mr. Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Street, Suite D
Woodland CA 95695
Mr. Ross Rogers
Merced Irrigation District, Licensee
P.O. Box 2288
Merced, CA 95344-0288
Interested Parties