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FERC shuts out Merced salmon and steelhead one more time

by Chris Shutes, CSPA FERC Projects Director

January 1, 2010 -- In a revised Study Plan Determination issued by its Director of the Office of Energy Products on December 22, 2009, the Federal Energy Regulatory Commission failed for the second time to order studies of salmon and steelhead as part of the relicensing of the Merced River Hydroelectric Project (P-2179).
 
In what for the moment is a pyrrhic victory for Conservation Groups (including CSPA), the Director found that there was, in the language of FERC, “nexus” between the hydroelectric project owned by Merced Irrigation District and the water and fishery resources downstream. The Director recognized that “cumulative” effects may be sufficient to establish nexus for the purpose of study. However, the Director also found that he needed a model to tell him what is already known: for four or more months of the year, the flows released from the project and the flows released below Merced ID’s Crocker-Huffman agricultural diversion dam four miles downstream are the same.
 
The Director explicitly suggested in the second Determination that some fishery studies might be considered one year from now if modeling establishes that there are direct effects of the project on the Merced River downstream of Crocker-Huffman Diversion Dam. The Director failed to elucidate why direct effects were the appropriate threshold for study. He also did not say why that threshold had not already been met. Conservation Groups cannot follow the logic that suggests that modeling will show FERC that there are direct project effects on the lower Merced River that can’t immediately be understood from what FERC already knows.
 
It appears to us that FERC is delaying a decision in preference to sorting out the details. This reduces the time available for study within this process and perhaps reduces the sampling effort. It places strains on information gathering within the context of FERC’s procedural timelines. It defers difficult decisions and the development of the rationales for those decisions. Within the FERC process, in the best of cases it sets the fish back one year.
 
In terms of process, FERC also offered no procedural direction or special dispensation. To meet the requirements of study a year from now, we will have to show how new information provides reasons for study that we don’t know today. The problem is that we not only have to pretend we don’t have the information today, we have to try to reproduce the convoluted logic of FERC staff in order to justify why new studies should be considered because we didn’t get it the first time.  
 
The story is long, but this is the latest
 
On September 14, FERC issued its initial Study Plan Determination for the relicensing process. FERC declined to adopt sixteen studies or study modifications that were jointly proposed by Resource Agencies and Conservation Groups. Studies were proposed to extend the scope of hydrology studies, establish baseline fishery conditions, test the response of salmon and steelhead to changes in flow, evaluate upstream habitat, and study the feasibility of restoring passage for anadromous fish.
 
Three Resource Agencies formally disputed the initial Study Plan Determination. A three person panel was appointed to make recommendations to FERC. The panel held a technical meeting on November 17, at which FERC staff and the State Water Resources Control Board, National Marine Fisheries Service, and U.S. Fish and Wildlife Service discussed the proposed studies. On December 2, the Panel issued two separate sets of recommendations to FERC.
 
On December 15, Conservation Groups responded to the two sets of recommendations. CSPA and its partners applauded the diligence of the Panel in reconstructing the record. We supported the Panel’s finding that the dispute should not be rejected for procedural reasons, as recommended by Merced Irrigation District. We supported the proposed expansion of the scope of the water balance model and water temperature model to Project flow compliance point more than twenty miles downstream of the hydroelectric facilities. We expressed disagreement with and inability to understand the idea put forward by two Panel members that the water and the river should be studied, but not the fish.
 
Additionally:  
 
·         We told FERC that if there are project effects to physical habitat downstream of Crocker-Huffman Dam, then surely there must also be effects to the fish that use that habitat.
·         We told FERC that existing information about fish downstream of the project was completely inadequate to determine baseline conditions, let alone to set conditions for a new license.
·         We provided FERC with examples of critical information that is lacking, such as information about all lifestages of steelhead and resident trout, and response of salmonids to changes in flow.
·         We pointed out to FERC the inconsistency of its approach to the Merced and Tuolumne rivers.
·         We suggested that FERC needed to consider fish passage in the context of comprehensive planning for a waterway, as required under Section 10(a) of the Federal Power Act.
·         We asked FERC, if it proposed phasing some studies to make them contingent on first-year studies, to make explicit what the criteria for accepting second-year studies would be.
·         We asked FERC to answer specific legal issues, and provide a legal rationale in its Determination.
·         We asked FERC to hold a technical conference to get the necessary studies right.
 
The second Determination doesn’t answer any of these issues. To the degree that the second Determination summarizes proposed studies, it is inconsistent in stating what their key elements and areas of controversy are, and in some cases ignores whole aspects of proposed studies.
 
In the end, for the fish, FERC changed the label, but the box is still empty. “Nexus” exists, but if it is not certain that a “study would necessarily inform the development of license requirements, also required by Study Criterion 5,” then a study will not be ordered. FERC, in short, has shut down the salmon and steelhead study season on the Merced for a year while it decides how much of the Merced River it will exercise authority over, and invites Resource Agencies and Conservation Groups to troll for studies in 2011.
 
Conservation Groups and others are considering various actions in response.
 
One last thread
 
Pacific Gas & Electric Company is relicensing its small Merced Falls Project (P-2467), located on the Merced River between the Merced River Hydroelectric Project and Merced Irrigation District’s Crocker Huffman Diversion Dam. Final comments on the Revised Study Plan and proposed studies for this relicensing were due December 21. Conservation Groups submitted both, including analysis of studies for which PG&E specifically should have responsibility.
 
While Merced Falls has little effect on flow, it is the downstream-most hydropower dam on the Merced River, and has definite and clear effects on fish passage. Conservation Groups revised two studies related to fish passage and proposed them for inclusion in the Merced Falls relicensing. The Director’s Determination on Merced Falls studies is due out January 4.
 
Read FERC’s second Study Plan Determination for the Merced River Project HERE.
 
Read Conservation Groups comments and proposed studies for Merced Falls HERE.