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FERC Project Boundary Question

MID has often stated that their proposals (as defined in H.R. 869 and H.R. 2578) will have no significant environmental impact as the proposed operations would be within current FERC boundaries.  Many others have stated that, if either bill were enacted, MID's operations would flood a significant (~1/2 mile) section of a Wild and Scenic River .  One of the sources of this discrepancy relates to a misunderstanding or misuse of the phrase "FERC project boundary."  MID's statements seem to be predicated on a premise that the FERC boundary taken by itself defines operational levels of the lake and river, while others focus on the existence of other requirements imposed by FERC and other public laws, e.g. a maximum normal operating pool level of 867', as being dispositive.

So who is right?

All projects licensed by FERC have a project boundary that defines the geographical limits of the licensee and FERC's jurisdiction, rights and obligations.  These boundaries are drawn outside of the area defined by the high water mark or maximum pool level, and the licensee is required to manage the area within the boundaries in accordance with a comprehensive plan that encompasses not only the need for water storage, but also maintenance, recreation, and many other factors.  Within these project boundaries the licensee does not have complete freedom to do whatever they want, but rather must manage operations within the conditions set forth in the FERC license.  Note that FERC is required, under the Federal Power Act, to coordinate with other Federal agencies, such as the U.S. Army Corp of Engineers, the U.S. National Marine Fisheries Service and the United States Fish and Wildlife Service, as well as State and local agencies to identify, define and enforce all necessary limitations on the operations of the licensee.

It is important to note that the FERC project boundaries are not intended to be the same as the maximum water level of the reservoir, but following current FERC regulations are set to no more than 200 horizontal feet from the normal maximum surface elevation of the lake or reservoir.

Apparently however when establishing the FERC boundary for the New Exchequer Dam project some years ago the eastern extent of the project boundary was established approximately 1/2 mile upstream at a river elevation of 876'.  This is at least 9' above the level defined by the 867' spillway and perhaps anticipates infrequent potential transient "flooding" of an area that may last for hours or perhaps a few days while this excess water is flowing over the spillway.  (Records show that during the time when the New Exchequer Dam has been in normal operation, water has never gone over the spillway, nor should it if a dam is operated responsibly.  There is some indication that water did spill once, and caused some damage, at the time the dam was initially being placed into operation).

Since the lower boundary of the Wild and Scenic Merced River has been set at a river elevation of 867' there is an approximately 1/2 mile stretch of the river that is designated as Wild and Scenic but which lies with the FERC boundaries.  Current public law and the current FERC license require that MID operate the dam with a spillway at the 867' level thus, under all but the most extreme circumstances, protecting the Wild and Scenic section of the Merced River within the FERC boundary.

Potential transient flooding of a area of a Wild and Scenic River is unfortunate, but is hopefully an infrequent act of nature and should not be equated with a deliberate long-term flooding of this same section of the river that would be authorized by H.R. 869 or H.R. 2578.

Many of MID's public statements would seem to imply that operations within the FERC boundary can have no environmental consequences, almost by definition, as they are acting with the geographical boundaries established in the FERC license.  It is like saying, "This is my property and I can do what I want with it", with no regard for permits, laws, etc.  This however is a misuse of concept of the FERC boundary and seemingly ignores other requirements of the FERC license and the need to operate within the greater framework of public laws established to assure environmental protections as well as public safety.

MID also sometimes mentions that their FERC boundary came first and the WSRA had no right to impinge on their boundary.  The simple fact is that the water level was set at 867’ in the original license, and PL 102-432 specifically allowed current operation of the dam at the existing legal water level, but no higher.  MID lost nothing, in terms of operating levels, when the Merced River above Lake McClure was added to the WSRA.

Since the more recent FERC regulations (2008) require a project boundary no more than 200' from the normal high water level, a relicensing process would no doubt resolve this situation and revise the FERC project boundary to eliminate the 1/2 mile of the river that is in this potentially ambiguous situation of being Wild and Scenic, but within the FERC boundary.  Of course if HR 869 was to become law the operation of the dam would be "clarified" and flooding of the Wild and Scenic portion of the river potentially legal.

Introduction Page – HR869 & HR2578

MERG Current Thoughts on HR 869 & HR 2578

New Exchequer Dam and Lake McClure

FERC Project Boundary Question

The FERC Relicensing Argument

Spillways at Lake McClure

Dam Safety

Embankment Dam Studies

Is Raising the Dam Crest Elevation Unlawful?

Known Geologic Issues

The Effect on the Limestone Salamander

Other Options for Additional Water Storage

MERG Early Thoughts on HR 869