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United States Department of the Interior United States Department of the Interior OFFICE OF THE SECRETARY Office of Environmental Policy and Compliance 333 Bush Street, Suite 515 San Francisco, California, 94104 In Reply Refer To: ER 17/0550 January 29, 2018 Honorable Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First Street, NE Washington, DC 20426 Subject: Department of the Interior COMMENTS, RECOMMENDATIONS, PRELIMINARY TERMS AND CONDITIONS, and PRELIMINARY FISHWAY PRESCRIPTIONS on the Federal Energy Regulatory Commission Ready for Environmental Analysis Notice for the Don Pedro Hydroelectric Project, Federal Energy Regulatory Commission Project No. P-2299-082, Tuolumne River, Tuolumne and Stanislaus Counties, California Dear Secretary Bose: The U.S. Department of the Interior (Department), including the U.S. Fish and Wildlife Service (USFWS), Bureau of Land Management (BLM) and the National Park Service (NPS) has reviewed the Federal Energy Regulatory Commission’s (Commission or FERC) November 30, 2017, "Notice of Application Accepted for Filing; Soliciting Motions to Intervene and Protests, Ready for Environmental Analysis and Soliciting Comments, Recommendations, Preliminary Terms and Conditions, and Preliminary Fishway Prescriptions" (REA/Intervention Notice) for Turlock and Modesto Irrigation Districts’ (Licensees or Districts) Don Pedro Hydroelectric Project (FERC Project No. 2299) (Project). An Amended Final License Application was filed with the Commission on October 10, 2017. The Department’s following mandatory Section 4(e) Conditions, Recommended 10(j) Conditions, Section 10(a) Recommendations, Reservation of Authority for Section 18 Prescriptions for Fishways, and comments are provided in response to the Commission’s November 30, 2017, REA/Intervention Notice regarding the Project in accordance with the Federal Power Act (FPA), as amended (16 U.S.C. § 791a, et seq.); the Fish and Wildlife Coordination Act, as amended (16 U.S.C. § 661, et seq.); the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. § 1531, et seq.); the Migratory Bird Treaty Act (MBTA) of 1918, as amended (16 U.S.C. 703-712); the Bald and Golden Eagle Protection Act (BGEPA) of 1940, as amended (16 U.S.C. § 668-668d); the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. §4321 et seq.); the Central Valley Project Improvement Act (CVPIA) (Pub. L. No. 102-575, 106 Stat. 4600, 4706, Title 34 (1992)); and the Federal Land Policy Management Act (FLPMA) (43 U.S.C. § 1701, et seq.). The Department, through its Bureaus, is a participant in the new licensing proceedings for the Don Pedro Hydroelectric Project, Project No.2299. To date, BLM, USFWS, NPS, state and federal agencies, various other parties, and the Applicants, Modesto and Turlock Irrigation 1 Districts, collectively known as “Relicensing Participants,” have been in negotiations to reach agreement on Protection, Mitigation, and Enhancement (PM&E) measures. The current license for the Project has an extensive record of discussion and analyses of Project effects. The Department hereby requests that the November 20, 2009, Final Report of the Presiding Judge on Interim Measures and the December 1, 2009, Administrative Law Judge's Certification of the Final Report of the Presiding Judge on Interim Measures be brought forward into the current record and incorporated by reference, including exhibits submitted by the USFWS, National Marine Fisheries Service (NMFS), and California Department of Fish and Game [Wildlife]. The Department hereby incorporates by reference the following exhibits: Exhibit FWS-1 through Exhibit FWS-30, filed on October 6, 2009 (FERC Accession Numbers 20091129-0163 through 20091129-0192) Exhibit FWS-31 through Exhibit FWS-41 (FERC Accession Numbers 20091129-0212 through 20091129-0222) Exhibit FWS-42, filed on December 4, 2009 (FERC Accession Number 20091129-0223) Exhibit FWS-43 through Exhibit FWS-106 (FERC Accession Numbers 20091129-0224 through 20091129-0283) Exhibit FWS-70, filed on October 6, 2009 (FERC Accession 20091129-0315) On August 8, 2005, Congress enacted the Energy Policy Act of 2005 (EP Act), Pub. L. No. 109- 58, which mandates new processes when the Department prescribes fishways pursuant to Section 18 of the FPA and mandates conditions pursuant to Section 4(e) of the FPA. The Department’s revised interim regulations implementing the EP Act are codified at 43 C.F.R. Section 45.1 et seq. In this proceeding, the Department is filing preliminary mandatory conditions pursuant to Section 4(e ); any party to the license proceeding may request a hearing on disputed issues of material fact with respect to any preliminary condition filed herein, as provided in 43 C.F.R. 45.21. Moreover, any party to the license proceeding may also propose an alternative condition as provided in 43 C.F.R 45.71. In this proceeding the Department is reserving the Secretary's Section 18 authority to prescribe fishways; consequently, the Department will not provide hearing or alternative review processes at this time with respect to fishway prescriptions under Section 18 of the FPA(43 C.F.R. Section 45.1(c)). The Department will provide such processes if (and when) the Department exercises its reserved Section 18 authority during the term of any license that may be issued in this proceeding. The impacts we seek to ameliorate are addressed in our FPA Section 4(e) conditions, which provide for the protection and utilization of reservation lands used by the Project, and in our recommended conditions, which contain a wide variety of protection, mitigation and enhancement measures to benefit threatened and endangered species, and to address water quality; riparian, floodplain, terrestrial and aquatic habitats; cultural, recreational, and other public resources throughout the Project; and ensure consistency of the Project with comprehensive plans that guide these resources. Incorporation of the Department's Section 18 fishway prescription, our Section 4(e) conditions, and our proposed recommended conditions into any license issued for this Project will help to ensure protection of the Department's trust resources. In addition, at this time, several ESA issues remain to be addressed through the Commission’s compliance with Section 7 of the ESA, and the USFWS requests formal ESA consultation on effects to the ESA-listed species pursuant to 50 CFR 402.14(a). 2 ENVIRONMENTAL SETTING The Don Pedro and La Grange Projects are an integrated water complex that provides irrigation and municipal water to farmland and municipalities in Stanislaus County, flood control for the Tuolumne and San Joaquin Rivers, water banking for the City and County of San Francisco, hydroelectric generation, recreation, and fish flows. In 2012, the Commission issued an Order Finding Licensing of Hydroelectric Project Required, which found that the licensing of the previously unlicensed La Grange Project is required (Docket UL11-1-000, 141 FERC ¶ 62,211 (12/19/2012); see also Order on Rehearing, 144 FERC ¶ 61,051 (7/19/2013). Consequently, an application for license of the La Grange Project is pending, and the Commission issued the REA/Intervention Notices for both projects on the same day. The integrated water complex of the Don Pedro and La Grange Projects (DPLG Complex) is owned and operated by Modesto and Turlock Irrigation Districts (Districts). Don Pedro Reservoir acts as the regulating reservoir for hydropower generation, water delivery, and flood control aspects of the DPLG Complex. The La Grange Reservoir acts as both an afterbay for the Don Pedro Project hydropower generation and a water diversion point for the Districts. Decisions regarding water releases and hydropower generation that are made at the Don Pedro Hydroelectric Project affect water availability for the diversions at La Grange Reservoir, hydropower generation at the La Grange Powerhouse, and availability of water for fish flows in the lower Tuolumne River. La Grange Dam (built in 1883) is much older than Don Pedro Dam (built in 1971, replacing a much smaller 1926 dam), and its utility would be significantly reduced without the up to 4060 times-greater water availability provided by Don Pedro Reservoir. The Districts share water rights on the Tuolumne River and ownership of the Don Pedro Project and Don Pedro powerhouse. Effects from the combined operations of the two reservoirs and their hydroelectric facilities should be considered interrelated with each other and interdependent on the joint operations plan because the La Grange and Don Pedro components are operated in an integrated manner, and they collectively affect both reservoir levels in Don Pedro Reservoir and flows in the lower Tuolumne River. CONSULTATION HISTORY The Department hereby incorporates by reference the filings made by the Department, including the USFWS, NPS, and BLM; the Districts; and the issuances by the Commission in the Integrated Licensing Process for the Project. The following is a brief chronology of the Commission issuances, the Districts’ major filings with the Commission for the Project, and the corresponding responses filed with the Commission by the Department through USFWS, BLM and NPS. The Resource Agencies include the Department and its component bureaus including the USFWS, BLM, and the NPS; the Department of Commerce, National Marine Fisheries Service (NMFS); the California Department of Fish and Wildlife (CDFW); and the State Water Resources Control Board (SWRCB). July 25, 2005—DOI Notice of Intervention for the Project, FERC #2299 August 12,
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