H.R. 869 and H.R. 2578 – Legislation proposed by Congressman Jeff Denham to remove a portion of the Lower Merced River from protection under the Wild and Scenic Rivers Act
MERG has prepared the following information to assist its members and other interested individuals to understand the implications of these proposed pieces of legislation.
MID’s Application to the Federal Energy Regulatory Commission
The Merced Irrigation District (MID) is currently in the process of obtaining authorization from the Federal Energy Regulatory Commission (FERC) to continue operation of the hydroelectric facility at the New Exchequer Dam on the Merced River. This process is referred to as “relicensing.” The existing FERC authorization for MID to conduct such operations expires in 2014. The reservoir behind the dam is Lake McClure, which meets with the Wild and Scenic Merced River several miles upstream of Bagby. MID’s relicensing effort, which began in 2006, has been complicated by an MID proposal to modify the existing spillway on Lake McClure to allow storage of an additional 70,000 acre feet of water, raising the maximum elevation level of the Lake to 877 feet and thereby flooding a portion of the Lower Merced River, at least periodically.
MID’s relicensing proposal can currently not be considered by FERC as it violates several key environmental laws, mainly the Wild and Scenic Rivers Act (WSRA) and the California Endangered Species Acts (CESA). MID has therefore enlisted the support of Representative Jeff Denham (R-California), who has introduced two bills to Congress that attempt to change federal law so that MID’s proposed spillway modification project can move forward. Both of these laws, however, remove a section of the Wild and Scenic Merced River from protection under the WSRA.
No section of any Wild and Scenic River has ever been removed from such protection, so either of these bills would set a terrible precedent, nationwide, for other Wild and Scenic Rivers.
MERG’s Due Diligence Effort
MERG has spent several months since Representative Denham introduced the first bill, H.R. 869, conducting research and carrying out a due diligence effort to understand the implications of the bill should it become law and to determine the scope of its position. The issues ranged from the potential for undermining the status of the wild and scenic river designation and the potential impact on Mariposa’s white water recreation industry, to implications for the limestone salamander, an endangered species resident found only in the Merced River canyon.
With the introduction of H.R. 2578, MID and Representative Denham have initiated a more direct assault on the Wild and Scenic Rivers Act. Passage of H.R. 2578 would give MID free reign to utilize the additional storage on a year round basis.
For that reason, MERG has developed a position, and prepared a number of resource materials for those wishing to better understand the proposed legislation and the associated implications. The links at the end of this discussion, including MERG’s current thoughts on H.R. 869 and H.R. 2578 may be useful in your research.
Photo by David Greenwood
The Wild and Scenic Rivers Act
The intent of the WSRA is clear. Dams have their place and are good, but it is also important to protect “some rivers or sections of rivers in their natural free flowing condition.” The WSRA was enacted specifically to counteract the effects of dams on those rivers and sections of rivers that were placed under protection. The WSRA defines three levels of protection, “Wild,” “Scenic,” and “Recreational,” with “Wild” reserved for the most pristine, undeveloped sections of protected rivers. The area of the Merced River in question above Bagby, pictured above, is designated as “Wild” and is therefore afforded the highest levels of protection under the WSRA.
The WSRA restricts the activities of Federal Agencies
In reading the rules by which FERC operates, it is clear that FERC must assure not only that projects it considers are in compliance with all laws, but FERC is also specifically prohibited from licensing, funding, planning or in any way assisting any project that is in conflict with the WSRA.
In fact the WSRA gives the Secretary of the agency administering the WSRA for a given water section veto power over permits. As the Bureau of Land Management (BLM) administers the region of the Merced River in question, the Secretary of the Interior must veto a FERC licensing or relicensing request for any proposal that violates the WSRA.
MID’s Pre-application Document (PAD) filed on November 3, 2008
MID submitted the PAD to FERC in 2008. Included in this proposal, is section 6.7 that identifies “Changes in Project Operation to Increase Generation.” One of these proposed changes is:
“Increase usable storage at Lake McClure through re-operation of the conditional storage space defined in the USACE flood rule curve and increase the maximum storage elevation through modification of the spillway structures.”
This is further defined in MID’s 2009 Study Program:
“With regards to increasing usable storage in Lake McClure, Merced ID has determined that this proposed enhancement can be accomplished within the existing FERC Project Boundary. Preliminary studies have indicated the existing dam can accommodate an increase in reservoir elevation of approximately 10 feet. Merced ID continues to assess the attractiveness of this enhancement, and plans to reach a decision in summer 2009.”
A number of conservation groups and groups responsible for river and fish health objected to MID’s PAD’s effects downstream on steelhead and salmon species protected by the federal ESA.
More significantly, the BLM response to the proposal called it “illegal” and pointed out that the issue of maximum water level was well spelled out in the original license and the WSRA. The BLM said that they would be required by law to deny the proposal and recommended to FERC that the proposal “should not be evaluated any further.” This would seem to be the end of the story unless, of course, congress somehow weakens the protection of wild rivers afforded by the WSRA.
Hence, MID is working with our local Congressman, Jeff Denham, to introduce H.R. 869 and more recently H.R. 2578 in order to remove this segment of the Merced River from the protection of the WSRA.
Introduction Page – HR869 & HR2578
MERG Current Thoughts on HR 869
& HR 2578
Impact on Whitewater Rafting
New Exchequer Dam and
FERC Project Boundary Question
The FERC Relicensing
at Lake McClure
Embankment Dam Studies
the Dam Crest Elevation Unlawful?
Known Geologic Issues
Effect on the Limestone Salamander
Other Options for Additional
MERG Early Thoughts on HR 869