Exchequer Dam relicensing: FERC panel backs changes to scope of Merced River study

December 9, 2009 

SUNSTAR FILE PHOTO DHYANA LEVEY

MERCED SUN-STAR

The red tape ruling how the Merced River is used can get as twisted as the river's course itself.

The latest regulatory turn has led to a revision of an earlier ruling by the feds that seemed to let Merced Irrigation District (MID) off the hook a bit in how it was obliged to study downstream species.

Earlier this month MID lost a minor skirmish in the bureaucratic war over control of its dams on the Merced River.

A dispute panel of the Federal Energy Regulatory Commission (FERC) recently recommended changes in the agency's environmental studies, opposing an earlier ruling, according to the panel's findings.

In September MID scored a coup when FERC, the body responsible for relicensing its hydroelectric project, ruled that the agency doesn't need to extensively study its dams' downstream impacts for relicensing. In effect, the ruling said the health of fisheries downstream of the district's dams aren't under FERC's licensing jurisdiction.

That decision didn't sit well with several environmentalist groups -- or with state and federal agencies whose environmental determinations are needed in the relicensing.

So those groups voiced their opposition in letters to FERC. Then they filed an official complaint over the ruling.

Now that complaint has won them a minor victory in the ongoing battle over the future of the Merced River.

FERC's three-person dispute panel recommended Dec. 2 that FERC's September ruling should be changed. It said FERC should make MID study some of the dam's downstream impacts. The recommendations limited the scope of some of those downstream impacts to where Oakdale Road passes over the Merced River, instead of all the way to the Delta, as some had hoped.

While the panel only makes recommendations, in the past FERC has ruled with the majority of such recommendations, said Ron Stork with Friends of the River, an environmental group that opposed the September ruling.

"They all reached a conclusion the project has direct effects on the river down stream and that therefore the commission's determinations were built on the wrong foundation," said Stork.

But Ken Robbins, MID's legal counsel, said the recommendations are neither a victory nor a loss. "Generally speaking, we are fairly satisfied with the panel's findings," said Robbins.

Despite the panel's recommendations, none of the complaining agencies will hold up the license in the long run, said Robbins. If the National Marine Fisheries Service doesn't issue a biological opinion FERC can move ahead anyway -- although that has never happened, he added.

On the surface, each ruling in the FERC relicensing process may seem to be just one more twist in the tangle of regulatory red tape governing the Merced River. But every step in the process may influence the future of MID's control over how it will run its hydroelectric operations -- a critical planning element for county farmers and ranchers.

The district's current license with FERC runs out in 2012.

Despite FERC's September decision, the project's impacts on endangered fish and water quality downstream on the Merced River must be included in the license, under the Clean Water and Endangered Species Acts, according to filings by NMFS and the State Water Resources Control Board (SWRCB).

That means before any license is issued, the NMFS must issue a biological opinion about the river's fish species. The SWRCB has to give the project a clean bill of health when it comes to the Clean Water Act, said Stork.

According to filings, SWRCB and NFMS say the limited scope of study for the project's impacts isn't a realistic approach to understanding the environmental effects of the dams.

FERC's director of energy services, Jeff Wright, is scheduled to rule on the required environmental studies for MID's license on or before Dec. 21.

Reporter Jonah Owen Lamb can be reached at (209) 385-2484 or jlamb@mercedsun-star.com.

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