Is Raising the Dam Crest Elevation Unlawful?

 The Bureau of Land Management has made the following observations in that agency’s Comments on Scoping Document 1 & PAD, 2009.  See FERC eLibrary Accession #20090304-5017.

 

“Section 3.1 MID’s Proposed Action. The MID Project facilities includes the feasibility of raising Exchequer Dam un-gated spillway height up to the maximum storage elevation at Lake McClure approximately 11 feet. This may impound the reservoir into the existing protected Merced Wild and Scenic River boundary for at least 4000 linear feet and at least1000 feet past the existing FERC project boundary. BLM Folsom Field Office is the lead administering agency managing this segment of the Merced Wild and Scenic River. BLM is requesting FERC to place the Exchequer Dam spillway raise project proposal alternative into Section 3.4 Alternatives Considered But Eliminated From Detailed Study. Such a proposal would currently invade the Merced Wild and Scenic River boundary, preventing free flow of the river and would direct and adversely affect the Outstandingly Remarkable Values (ORV) BLM is charged to protect and enhance. As noted in the PAD submitted by MID pg 7.9-2.3 Section 3 of P.L. 102-432 provides that the designation of the Merced River shall not affect the continued operation and maintenance including flood control operations of the Project or FERC’s authority to issue a new license for the project within the existing FERC Project Boundary. If FERC issues a new license, the normal maximum water surface elevation authorized in the Project license can not exceed elevation 867.0 feet. It’s clear from the Congressional language contained in the legislation that the water surface elevation can not exceed 867.0. Furthermore any proposed water resource project within the bed and bank of an existing wild and scenic river requires the applicant to file with the Army Corp of Engineers for a Section 404 permit. Army Corp of Engineers would have to notify BLM of this project and request the lead wild and scenic river administering agency in this case BLM of the proposed project. BLM would alert Army Corp of Engineers that this project would invade upon the existing wild and scenic river boundary and request the Army Corp of Engineers to deny the proposed water resource project.

 

“Section 7(a) of the Wild and Scenic Rivers Act prohibits FERC from licensing any reservoir “on or directly affecting” a wild and scenic river. Specifically, “The Federal Power Commission [FERC] shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act (41 Stat. 1063), as amended (16 U.S.C. 791a et seq.), on or directly affecting any river which is designated in Section 3 of this Act as a component of the national wild and scenic rivers system or which is hereafter designated for inclusion in that system, and no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration.

 

“As noted in the §7 section of the Wild & Scenic Rivers Reference Guide: Federal Assistance is described as “Any assistance by an authorizing agency before, during, or after construction. Such assistance may include but is not limited to: a license, preliminary permit, permit, or other authorization granted by FERC…” Therefore, FERC and other Federal agencies are prohibited by law from assisting in the development of licensing alternatives, even in the National Environmental Policy Act (NEPA) Scoping Document such as the one reviewed for this project.

 

“The FERC cannot authorize or license MID to build a spillway gate that will raise the Exchequer Reservoir inundating a segment of the Merced River that is within the designated wild and scenic river boundary. Thus this proposed water resource project alternative should not be evaluated any further in this Relicensing process.”

 

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