Early Thoughts on HR 869 – The First Bill Introduced by Congressman Denham

 

HR 869 is an amendment to Public Law 102-432, the bill, signed into law by George W. Bush amends the WSRA to include the lower Merced River down to Lake McClure. Lake McClure is defined as having a maximum level of 867 ft elevation, the same maximum level defined in MID’s current license for operation of the Exchequer Dam.   P.L. 102-432 also provided for the continued operation, maintenance and flood control operations of the New Exchequer Dam, but the language addressing the operation of the dam was not included in the amended WSRA^[i][i].  While HR 869 does not directly modify the WSRA, it is in direct conflict with the intent of the WSRA and is no doubt an attack on the authority of the WSRA vs. other needs in water management.

 

 The language in HR 869 itself is interesting.  It says:

 

A BILL

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.

 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

 

SECTION 1. FLOOD CONTROL OPERATIONS CLARIFIED.

Section 3 of Public Law 102–432 is amended by adding at the end the following: ‘‘For purposes of this section, ‘flood control operations’ shall include occasional short- term increases in the level of Lake McClure not to exceed elevation 877 feet mean sea level for a period not to exceed 60 days between May 1 and July 31 of above-normal water years, as defined by the San Joaquin Valley 60–2 20–20 Hydrological Classification Index, developed by the California State Water Resources Control Board, or any successor index applicable to the Merced River water-shed.’”

 

HR 869 does not say: For the purpose of providing more water for homes and agriculture, as well as clean energy….

 

HR 869 does not say: For the purpose of protecting life and property in Merced County, improved flood control operations are required in a time when increasingly wet and violent storms are likely to require additional water storage.

 

Flood Control Operations

 

Normally flood control operations for a dam and reservoir are determined by flood control curves or rule curves that define the maximum allowable reservoir pool elevation and therefore water storage as a function of day and month as can be seen in the diagram below.

 

These rule curves are imposed by the COE for the purpose of assuring adequate capacity, called “conditional space,” to absorb spring and summer storm runoff and snowmelt. Currently MID is required to limit the water level in the reservoir to approximately 65% of capacity (~807 ft elevation) during April and early May, with the allowed level rising linearly to full capacity (867 ft elevation) by August. 

 

From the PAD MID submitted in 2008:

 

“Articles 39. This article requires Licensee to enter into an agreement with the United States Army Corps of Engineers (COE) regarding flood control operations of Lake McClure. Licensee entered into the agreement, the result of which is summarized in Section 6.3.1.1.

 

To adhere to these limits, Licensee pre-releases water from Lake McClure when Licensee anticipates a storm or snowmelt runoff event that would result in an exceedance of the limit, and increases releases if Lake McClure elevation exceeds the flood control limits.”

 

There is obviously a tension between the water storage limitations imposed by the rule curves and MID’s desire to capture, store and sell as much water as possible.

 

HR 869 seemingly seeks to change the definition of “flood control operations” for the Exchequer Dam and Lake McClure. There is no mention in the law of also needing to also meet flood control standards as imposed by the COE. One interpretation of this language is that this bill would override the flood control requirements currently required by the Army Corp and allow MID to raise the level of the lake to a maximum storage level, increased to 877 feet elevation, for a significant (60 day) portion of the late spring and summer.   This is no doubt the meaning of the phase, “re-operation of the conditional storage space” in the PAD request for changes to operation.  This would of course allow MID to store and sell considerably more water than the 70,000 acre feet typically mentioned in press releases, etc. 

 

If this interpretation of HR 869 were implemented, it would seem questionable in terms of flood control and the ability to accommodate snowmelt. It is unfortunate that HR 869, on the surface, seems to specifically authorize an irresponsible operation of the dam and therefore would seem to threaten public safety. 

 

Another approach to the interpretation of the effects of HR 869 would be for the FERC relicensing to require rule curves and conditional space to be imposed by the Corp of Engineers, in this case, based on a new maximum level of 877, and taking into account the changes in weather patterns in the future due to climate change, [RCK2]etc.  This would be a more responsible approach in terms of flood control operations and it would likely require seasonal operating levels in the lake to be at or below current required levels. 

 

It is hard to guess which of these interpretations MID is intending to use if HR 869 passes.  Clearly MID's Pre-application Document (PAD) in 2008 and study plans in 2009 have been perhaps purposely vague about how they would “re-operate” "conditional storage".  HR 869 would seem to add “clarity”, as it is very specific about storage levels and time frames. To the extent that HR 869 can be seen as superseding the COE’s authority over flood control operations, it is a bill that at least potentially endangers public safety.

 

In either case, by allowing operation 10 ft above the current WSRA defined maximum level of 867 ft, HR 869 is in direct conflict with the WSRA.

 

Thus HR 869 would seem to violate at least several fundamental environmental laws, at a minimum the Wild and Scenic Rivers act and the California Endangered Species Act (see section on the Limestone Salamander)  Therefore it would seem not likely to get through the congress and the President or the courts. It should also be noted that all of these issues are discussed in MID’s PAD and dismissed as not an issue, or an issue that could be resolved by further study.