For the past five years, CSPA and allied conservation groups have been stymied in efforts to require study of fish passage in important hydropower relicensings in California. Licensees on the Merced and Tuolumne rivers have argued that their own agricultural irrigation diversions dams downstream of the huge dams that store water for these diversions were the barriers to fish passage, not the huge storage dams themselves. The storage dams have hydroelectric projects on them that are subject to hydropower licensing by the Federal Energy Regulatory Commission (FERC), but so far FERC has not looked at passage because of the smaller dams just downstream.
In a potential breakthrough, FERC issued an Order on December 18, 2012 finding that La Grange Dam on the Tuolumne River and the small La Grange Powerhouse just next to it were jurisdictional to FERC. FERC ordered owner Turlock Irrigation District to license “the La Grange Project” under the Federal Power Act. A licensing process for La Grange could require Turlock and Modesto Irrigation Districts to study and possibly implement fish passage past La Grange and Don Pedro dams.
FERC’s December Order examined four issues: navigability of the Tuolumne River, occupation of federal lands by the La Grange Project, use of the La Grange Project to make flow releases into the lower Tuolumne River as required in the license for the Don Pedro Project (2.6 miles upstream of La Grange), and whether La Grange is used to regulate releases from Don Pedro Powerhouse. The Order found that the Tuolumne River is navigable and that the La Grange Project occupies federal land. The Order deferred answering whether use of La Grange to release instream flows required for Don Pedro meant that La Grange should be licensed as part of “a complete unit of development,” i.e. as part of the Don Pedro Project. The Order also found that La Grange did not re-regulate releases from Don Pedro (re-regulate means to even out the river flows downstream after flows through a powerhouse fluctuate).
Conservation Groups think FERC got the right answer, but didn’t get the all the pieces right. We were concerned that FERC might separate La Grange from Don Pedro, and we knew that the Districts would challenge FERC on navigability and occupancy of federal lands. This could delay study of fish passage, or, in the worst case, return FERC to the situation where it would again reject study of fish passage if the La Grange Project on a stand-alone basis were found to be not subject to FERC’s jurisdiction. Thus, on January 18, 2013, CSPA and allied groups filed a “request for rehearing” with FERC. The filing provides a technical analysis of how the facilities at La Grange re-regulate hydropower releases from Don Pedro, and makes a legal argument for licensing La Grange as part of the complete unit of development of the Don Pedro Project.