`COMMERCE
`National Oceanic and Atmospheric
`Administration
`NATIONAL MARINE FISHERIES SERVICE
`WEST COAST REGION
`650 Capitol Mall, Suite 5-100
`
`
`
`
`
`June 7, 2023 In response refer to:
` WF:WCR:FERC P2179/P2467
`
`Kimberly D. Bose, Secretary
`Federal Energy Regulatory Commission
`888 First Street, NE
`Washington, D.C. 20426
`
`
`
`Re: Merced River and Merced Falls Hydroelectric Projects (P2179 and P2467)
`
`The National Marine Fisheries Service (NMFS) writes to request clarification from the Federal
`Energy Regulatory Commission (FERC) regarding the scope of FERC's jurisdiction with respect
`to the projects in the abovereferenced proceedings. Specifically, NMFS requests clarification of
`whether FERC’s jurisdiction in the current proceedings encompasses or does not encompass the
`CrockerHuffman Dam, it's fish ladder, and the operations of both.
`
`In 2009, FERC’s Scoping Document 2 stated: "… (t)he Project does not include any water
`conveyance systems or other facilities, features or appurtenant structures used by the Irrigation
`District solely for the purpose of providing consumptive water such as the CrockerHuffman
`Diversion and associated facilities." [FERC Scoping Document 2, April 17, 2009, at 8]
`(Attachment 1). Moreover, that scoping document characterized “the CrockerHuffman
`Diversion Dam” as “an impoundment not within the jurisdiction of FERC, located downstream
`of PG&E’s Merced Falls project (FERC No. 2467).” [Id. at 4]. Similarly, in a 2009 study plan
`determination, FERC staff stated that CrockerHuffman Dam “is not a licensed project facility,
`therefore, not within the Commission’s jurisdiction,” and that “because CrockerHuffman is not
`a project structure, we have no authority to alter the operation of CrockerHuffman.” [FERC
`Study Plan Determination for the Merced River Hydroelectric Project, September 14, 2009,
`P2179042, at 3] (Attachment 2). FERC’s Final EIS stated that “CrockerHuffman diversion
`dam and any associated features, "…are not associated with the hydroelectric project and are
`not included in the existing license.” [FERC, Final EIS for Hydroelectric Licenses, Project Nos.
`2179043 and 2467020, December 2015, at G47].
`
`Based on such statements, NMFS has been operating under the assumption that the Crocker
`Huffman Dam’s fish ladder is viewed by FERC as outside its jurisdiction in these proceedings.
`However, recent developments have raised uncertainty about the validity of this assumption. In
`other proceedings, the Licensee, Merced Irrigation District (MID), recently asserted that
`
`
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`“[j]urisdiction over [CrockerHuffman] Dam operations and fish passage is currently still an
`open issue in the FERC relicensing proceeding.” [Mem. in Support of MID Demurrer, Water
`Audit Cal. V. MID, No. 22CV03034, February 9, 2023, at 14] [emphasis added] (Attachment 3).
`MID also asserted that the “potential reopening of the fish ladder” at CrockerHuffman Dam
`remains an “issue” in the present FERC licensing proceedings. [Id. at 7]. In support of these
`assertions, MID has cited a 2014 FERC order in which FERC stated:
`
`"Regarding NMFS’s and FWS’s request to reinitiate operation of the fish ladder at Crocker
`Huffman Diversion Dam, we note that this is being analyzed in the relicensing proceeding
`for this project, and requiring this measure may preclude any ongoing analyses and
`negotiations among project stakeholders. We also recognize the logistical challenges
`associated with reoperating the ladder, including the permitting and agency approvals
`necessary for its reoperation. Therefore, we concur that reoperation of the fish ladder on
`a temporary basis related to this temporary variance request, should not be required at
`this time, and defer this decision to the current relicensing proceeding." [FERC, Order,
`147 FERC 62,081, May 2, 2014] [emphases added] (Attachment 4).
`
`Based on these 2014 statements by FERC, and their recent interpretation by MID, it appears
`there remains uncertainty as to whether the fish ladder at CrockerHuffman Dam is subject to
`FERC’s jurisdiction in these proceedings.
`
`In order to remove any uncertainty on this issue, we request clarification of FERC’s view as to
`whether or not the CrockerHuffman Dam and fish ladder is within FERC’s jurisdiction in these
`proceedings. NMFS also relatedly seeks clarification of whether FERC, in its view, has authority
`under the Federal Power Act to impose license terms and conditions in the present proceedings
`that would modify that facility or its operations. NMFS respectfully requests that FERC provide
`this clarification within 60 days of receipt of this letter.
`
`Sincerely,
`
`Steve Edmondson
`FERC Hydropower Branch Supervisor
`NMFS, WCR, Central Valley Area Office
`
`Enclosures
`
`Attachments 1 to 4 efiled with this Letter.
`
`Attachment 1: FERC Scoping Document 2, April 17, 2009, at 8.
`Attachment 2: FERC Study Plan Determination for the Merced River Hydroelectric Project,
` September 14, 2009, P2179042, at 3.
`
`
`
`Attachment 3: Mem. in Support of MID Demurrer, Water Audit Cal. V. MID, No. 22CV03034,
`
` February. 9, 2023, at 14.
`Attachment 4: FERC, Order, 147 FERC 62,081, May 2, 2014.
`
`cc:
`
`FERC Service Lists (P2179 and P2467).
`
`
`
`UNITED STATES OF AMERICA
`FEDERAL ENERGY REGULATORY COMMISSION
`
`Enclosure A
`
`P2179
`P2467
`
`)
`)
`)
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` )
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`Merced Hydroelectric Project
`Merced Falls Hydroelectric Project
`Merced Irrigation District
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`Merced River
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`CERTIFICATE OF SERVICE
`
`I hereby certify that I have this day served, by first class mail or electronic mail, a letter to
`Secretary Bose of FERC, the U.S. Department of Commerce’s, National Oceanic and
`Atmospheric Administration’s, National Marine Fisheries Service’s request regarding Crocker
`Huffman Dam for the abovecaptioned proceedings, and this Certificate of Service upon each
`person designated on the official service lists compiled by FERC in the abovecaptioned
`proceedings.
`
`Dated this 7th day of June 2023
`
`



