MERG
Current Thoughts on H.R. 869 and H.R. 2578
Mariposans
for the Environment and Responsible Government (MERG) was founded in 1989 to
inform the public and decision makers about responsible government, land use
and environmental issues in order to promote a high quality of life for present
and future Mariposans. MERG’s highest-level consideration
in all of its activities is that “The environment is our economy.”
Consistent with our focus on
environmental issues confronting Mariposa County, MERG joined with Friends of
Yosemite Valley in 1999 in a successful legal challenge against the National
Park Service (NPS) to prepare a user capacity analysis for the Comprehensive
Management Plan for the Merced River in Yosemite National Park as required by
the Wild and Scenic Rivers Act.
MERG continues to monitor NPS’s progress under
the 2009 settlement agreement that resulted from that legal challenge. MERG also continues to monitor other
private or government actions that might adversely impact the Wild and Scenic
sections of the Merced River.
We are very concerned about the
implications of H.R. 869 and, more recently H.R. 2578, should either bill
become law.
Specifically, approval of either bill
would, according to the Bureau of Land Management*
o Remove ½ mile of the 3 miles of
the Lower Merced River designated as “Wild” from protection under the Wild and
Scenic River Act, setting a terrible national precedent for all wild and scenic
rivers.
o Flood
an additional one and one-quarter miles of the River above Bagby,
resulting in still water conditions, and thus rendering the River far less attractive
to white water rafters.
o Result
in inundation of up to 5 miles of trails in the river canyon.
o Result
in loss of jobs and revenue in Mariposa County as river-based and river related
recreation during a portion of the year is eliminated
o Remove critical habitat of
the limestone salamander (which is found in no other part of the (world/U.S.)
except the Merced River corridor), almost certainly resulting in a ‘take’ or
kill, a violation of the California Endangered Species Act
(*Source: Testimony delivered by Robert V. Abbey, Director of the Bureau
of Land Management to the Subcommittee on National Parks, Forests and Public
Lands on July 26, 2011)
FERC
Relicensing, H.R. 869 and H.R. 2578
Merced Irrigation District (“MID”) has
requested authorization from the Federal Energy Regulatory Committee (“FERC”)
to continue operation of the New Exchequer Dam that forms Lake McClure. MID’s current
license expires in 2014. As part
of the relicensing process, MID is requesting authority to increase storage in
Lake McClure by raising the maximum legal water level to 877 feet via a
“spillway modification project”.
Raising the level of the reservoir cannot be considered by FERC at this
time, as doing so would violate a provision in the Wild and Scenic Rivers Act
(“WSRA”) in which FERC is specifically prohibited from licensing, funding,
planning or in any way assisting any project that is in conflict with the
WSRA. The current MID FERC
license, the WSRA and Public Law 102-432 (the law that amended the WSRA to add
the Lower Merced River) all define the maximum reservoir level of Lake McClure
as 867 ft level.
Rep. Denham introduced H.R. 869 to
Congress in March 2011. H.R. 869
proposes to increase the storage in Lake McClure by amending PL 102-432 to
allow the maximum legal level of the reservoir to be increased from 867 ft to
877 ft. If H.R. 869 were to
become law, the language in the amended P.L. 102-432 would conflict with that
contained in the WSRA. H.R.
869 also proposes to allow the reservoir to be held at this elevated level for
60 days from May 1st to July 31st in years that are
wetter than the historical average.
This specific language caused many who read
it to question the law’s effect on flood control and public safety and caused
much discussion about how often the river segment in question would be flooded,
for how long and whether that would do more environmental damage than the
transient flooding that occurs on a natural free flowing river. Pinning down the level of a free
flowing river and its intersection with a lake or reservoir is not easy and
discussions about H.R. 869 tended to be long and complicated. Opponents also claimed that H.R. 869
was deceptive in that it didn’t mention the WSRA, even though its effect would
be to undermine this very important law.
H.R. 2578 is a much easier bill to
understand and it is a direct assault on the WSRA. H.R. 2578 directly amends the Merced River Wild and Scenic
designation to move the WSRA boundary for the Merced River approximately
½ mile upstream to a location that is equal to the boundary approved by
FERC as part of MID’s initial authorization in
1964. H.R. 2578 also amends PL
102-432 to remove the Reagan-era agreement and provision in PL 102-432 that
restricts any future relicensing of the New Exchequer Dam to “elevation
867”. H.R. 2578, thus, does not
limit MID’s ability to flood the ½ mile
segment of the Merced River to 60 days, but instead allows MID full control
over the ½ mile segment of this Wild and Scenic River 12 months of the
year, every year. By moving the
WSRA boundary approximately ½ mile upstream, that section of the river
would be completely eliminated from protection under the WSRA. This would be the first case where any
segment of a Wild and Scenic River was removed from protection.
MID’s use of their FERC boundary in
these debates has caused much confusion.
Many of MID's public statements would seem to
imply that operations within the current FERC boundary can have no
environmental consequences, almost by definition, as they are acting within the
geographical boundaries established in their FERC license. This is, however, a misuse of the FERC
boundary concept. It 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,
such as the WSRA, as well as public safety. It can be assumed, if we move the WSRA boundary ½
mile upstream to the current FERC boundary, as a consequence that a new FERC
boundary will need to be moved even further upstream putting even more of the River
under MID’s control.
FERC
boundaries are always outside and/or upstream of the maximum legal water level
for all FERC regulated reservoirs, typically by 200 ft or less. Larger buffer zones are allowed for
other project purposes such as recreation, roads or maintenance. Other Wild and Scenic Rivers such as
the Tuolumne and Feather rivers have similar zones of overlap between Wild and
Scenic River segments and FERC boundaries. Thus, passage of H.R. 2578 would set a very bad precedent
and likely encourage the operators of reservoirs on those rivers to also seek
legislation allowing them to inundate portions of Wild and Scenic Rivers.
Farms,
Houses and Flood Control
According
to press releases by MID on their “spillway modification project,” the fairly
minimal additional water storage provided by these bills would be used for new
housing in the area and for the generation of electricity for those
houses. There is no mention of
agricultural use for that water.
The bill’s sponsor, Representative Denham, on the other hand, stresses,
“jobs, jobs, jobs” and states that the high unemployment in his district is a
direct result of lack of water for agricultural irrigation, even in this
unusually wet year. Actually, a
very small percentage of the jobs in Denham’s district are agricultural and the
origin of recent high unemployment is no doubt more because of the economy in
general and the housing bust more specifically rather than the lack of water
for irrigation. It should be noted
that local irrigation water sales by MID actually decrease in high rainfall
years.
H.R. 869 was introduced by Denham “To
clarify the definition of flood control operations for the purposes of the
operation and maintenance of Project No. 2179 on the Lower Merced River.” Likewise, Denham claims flood control
benefits for his bill although MID has said that the effects on flood control
from the spillway modification project would be incremental. Denham actually claimed twice in a
House Subcommittee hearing that his bill would help prevent the flooding of the
Merced River in Yosemite Valley, apparently unaware that the Valley is upstream
by 40 miles and 3000 feet higher in elevation. The point is that claims by all parties to this argument
must be looked at critically in comparing benefits with damage from enactment
of such legislation.
Garamendi’s
Proposal
Representative John Garamendi
(D-California), who sits on the House National Parks, Forests and Public Lands Subcommittee,
which is currently considering these two bills, has suggested that
Representative Denham withdraw both of these bills and, instead, introduce a
bill that would allow FERC to consider raising the level of the reservoir
without prior removal of the river segment from protection by the WSRA. The Garamendi proposal would thus
nullify the provision in the WSRA that prohibits Federal agencies from
considering proposals that conflict with the WSRA such as MID’s
current relicensing effort. In the
Garamendi proposal, if FERC finds that raising the reservoir makes sense from
an economic and public safety point of view, then Congress can consider the
pluses and minuses of removing that section of the river from the WSRA and vote
accordingly. MID has publicly
stated that this proposal would not work for them, as they want assurance that,
if they invest in the necessary studies, the WSRA would not preclude completion
of the project. MID would rather
remove the segment of the river in question from the WSRA via H.R. 869 or 2578,
and then do the studies to find out whether there are other legal or safety
issues involved.
While the Garamendi proposal is an
interesting middle ground, those who wrote the WSRA so many years ago purposely
included the prohibition on Federal agencies from evaluating proposals in
violation of the WSRA for a good reason – they considered the WSRA so
fundamental to protecting rivers in their natural free-flowing state from the
negative effects of dams, that they wanted to make a law which would be very
hard to circumvent. If Congress is
allowed to nullify key provisions of the WSRA, it could lead to a general
unraveling of this fundamental environmental law. Of course, there is no question that this is exactly what
many in Congress want to do.
Implications
for Mariposa County
The Merced River is fundamental to
Mariposa County’s tourism and recreation-based economy and to the continued
existence of the many recreation-based jobs in the County. The Merced River is protected by its
status as a Wild and Scenic River under the WSRA both in and outside Yosemite
until it reaches Lake McClure. The
Park Service in Yosemite National Park (YNP) is working hard to preserve and
restore the wild and scenic nature of the Merced River in the Park. How ironic it would be --tragic
actually -- if a segment of that same Merced River a few miles downstream were
the first to be removed from protection by the WSRA. This would establish a terrible precedent for rivers
designated as Wild and Scenic nationwide, as well as the communities that
depend upon the economic benefits of those rivers.
A free flowing, wild and scenic river
supports unique habitats and permanently protects many river-related
recreational activities that are of economic benefit to Mariposa County. Representative Denham claims that
increasing the size of the reservoir will create boating jobs on the Lake. However the proposed project would only
increase the size of the lake by a few tenths of a percent, therefore, having
minimal impact on such jobs. On
the other hand, flooding a significant segment of the “Wild” portion of the
Merced River, which is ideal for whitewater rafting, would definitely affect
river related recreational jobs in Mariposa County. In addition, inundation of up to five miles of existing trails
along this portion of the River would reduce if not eliminate the revenues that
accrue from hikers, mountain bikers and equestrian riders who are drawn to the
natural beauty of this section of the River.
Mariposa County, perhaps as much as any
county in the country, benefits from its environment and preservation of that
environment is essential to not only attract visitors to the area, but also to
attract businesses and individuals that are interested in living, working and
recreating in a natural setting.
To reiterate, MERG believes that “The environment is our economy”. We believe that passage of H.R. 869 or
H.R. 2578 would have a negative impact on the local environment and, therefore,
negatively affect Mariposa County’s economy today and tomorrow.
Conclusion
We conclude that the rationale
proffered for these pieces of legislation is misleading. The primary benefit of these bills is
to provide 70,000 additional feet of water storage for MID to sell to
downstream buyers, not for local flood control, local housing or local
irrigation water in high water years.
MID has stated that it is willing to spend $40,000,000 to modify
spillways to store this additional 10 feet of water. We conclude that there must be a significant payback
anticipated on this investment.
We also conclude that the precedent
that these pieces of legislation will set for Wild and Scenic Rivers, the WSRA,
and endangered species will permanently impact not only Mariposa County, but
other counties in California and nationwide. One cannot ignore the fact that these are precedent-setting
bills.
We urge caution and due consideration
of the impacts of H.R. 869 and H.R. 2578.
Introduction Page – HR869 & HR2578
MERG Current Thoughts on HR 869
& HR 2578
New Exchequer Dam and
Lake McClure
FERC Project Boundary Question
Is Raising
the Dam Crest Elevation Unlawful?
The
Effect on the Limestone Salamander
Other Options for Additional
Water Storage
