CSPA Comments on FERC’s Additional Information Request for Merced Irrigation District’s Hydro Projects
Crocker Huffman Dam – Merced Fall Hydro Project
CSPA and several allied conservation groups[1] filed comments on April 1, 2021 responding to the Federal Energy Regulatory Commission (FERC) staff’s February 19, 2021 Additional Information Request (AIR) for the Merced River Hydroelectric Project and the Merced Falls Hydroelectric Project (collectively, Projects). These two hydroelectric projects are owned by the Merced Irrigation District (Merced ID) and have been undergoing relicensing since February 2012.
On June 18, 2020, FERC issued an Order finding that the State Water Board had waived certification for the Projects.[2] A primary purpose of the AIR is to allow FERC to evaluate the inclusion of elements of the combined Water Quality Certification (the Certification) for the Projects.
The AIR also addresses information needed to inform the National Marine Fisheries Service’s (NMFS) consultation under the Endangered Species Act (ESA). NMFS has informed FERC that the ESA consultation must consider past effects of project operations as well as comparing present project effects with effects under proposed future operation. FERC did not perform this analysis in its Final Environmental Impact Statement in 2015. FERC plans to issue a Supplemental Environmental Impact Statement to perform this new evaluation.
The Conservation Groups’ comments recommend that FERC Staff clarify and expand its directives on the following issues:
1) Provide explicit direction and rules to Merced ID for modeling elements of specified Certification Conditions, including carryover storage, irrigation deliveries, temperature targets and performance metrics, and for modeling specific scenarios for State Water Board’s Certification Condition 4 (Extremely Dry Conditions).
2) Revise directives to MID related to the pre-project baseline, cumulative effects, and geographic scope.
3) Review and analyze those elements of the Certification whose implementation would positively affect tribal interests, in order to more fully inform Staff’s analysis.
The Conservation Groups submitted these comments because of concerns that the AIR lacks sufficient specificity and direction to Merced ID regarding how to model elements of the Certification that the Certification itself left to be defined or quantified at a future date. The AIR also lacks internal consistency: it asks Merced ID to provide analysis of the past effects of project operation, but not the past effects of project construction.
Another major concern is that the AIR appears to be partially premised on the position that FERC has discretion to decline compliance with those elements of the Certification that are also elements of the adopted Bay-Delta Plan. This premise that waiver of certification would absolve Merced ID of compliance with the Bay-Delta Plan is unfounded. FERC needs to clarify this distinction and to direct Merced ID on how to model the adopted Bay-Delta Plan in light of the fact that the Bay-Delta Plan will require Merced ID’s compliance.
FERC’s do-over of its Environmental Impact Statement needs to pick up all the loose ends. That requires clarity. It is not helpful to ask a regulated entity to fill in the blanks before providing information that is supposed to help FERC staff correct oversights and poor decisions that staff made previously in relicensing.
[1] Other groups include the Merced Conservation Committee, the Golden West Women Flyfishers, Friends of the River, American Rivers, American Whitewater, Trout Unlimited, the Northern California Council Federation of Flyfishers International and the Sierra Club Tehipite Chapter.
[2] The California State Water Resources Control Board and a group of environmental organizations, including California Sportfishing Protection Alliance, Friends of the River, and Sierra Club and its Tehipite Chapter, each have filed a petition for review with the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) of FERC orders finding that the Water Board waived its authority under section 401 of the Clean Water Act (CWA) to issue a water quality certification (WQC) in the ongoing relicensing of Merced Irrigation District’s (Merced) Merced River and Merced Falls Projects. CSPA et al.’s Petition was filed in October 2020.
