Modesto Irrigation District leaders will head to federal court to resolve a licensing dispute over the 120-year-old La Grange Dam.
Winning the appeal could save up to $14 million in fees and studies.
The Turlock Irrigation District, the MID's partner utility, owns a small powerhouse at the center of the dispute. The TID board emerged Tuesday from behind closed doors with no announcement, but opponents expect the district to join the MID in the appeal.
At issue is a 4.9-megawatt power plant built by the TID at the Tuolumne River dam in 1924, a few decades before the federal government began requiring licenses. The La Grange plant produces about a 50th of the output of turbines at Don Pedro Reservoir, also owned by the sister districts two miles upstream.
The districts are in the middle of a multiyear application for a new Don Pedro license, expected to cost at least $50 million. A couple of years ago, as that process got under way, the National Marine Fisheries Serv- ice asked how the La Grange plant could have gotten away without a license all these years.
Staff with the Federal Energy Regulatory Commission agreed in December and ordered the MID and TID to apply. The districts formally asked FERC's commissioners to revisit the order, and commissioners last month upheld it, citing several reasons in a 46-page ruling:
Boats can navigate the Tuolumne's 52-mile stretch from where it meets the San Joaquin River up to the La Grange Dam, and used to go further before it was finished in 1893. Steamboats and converted whaling boats ferried miners to foothills during the California Gold Rush in 1849 and 1850.
Water behind the dam backs onto federal land.
The TID upgraded turbines in 1989, well after a 1935 deadline for grandfathered facilities.
Any of those is reason enough to seek a license, commissioners said in the July 19 ruling.
The districts argued that the application could cost as much as $4 million, plus up to $8 million for environmental and other studies, and an additional $2 million complying with dam safety requirements.
"Economic loss alone" is not a good enough reason to postpone starting the process while the districts appeal in court, commissioners said in the ruling.
"The La Grange project requires licensing on several grounds and has operated for many years without the requisite authorization," the document reads.
The districts must file a license application, typically a 12- to 18-month process, by the end of 2015, unless they can persuade a federal judge otherwise.
"MID and TID are disappointed," said MID spokeswoman Melissa Williams. "We simply disagree with FERC's findings. We believe their findings are flawed and not supported by law."
FERC relied on a March 1850 Stockton Times article as the only known reference to whaling boats, the districts argued, and they said a license should be mandatory only if the river could be used for commerce. That narrow stretch of the Tuolumne has rapids, and the U.S. Army Corps of Engineers does not include it in reports on navigable rivers, the districts said.
A consortium of 10 environmental and fishing groups joined the debate and hope the districts are forced to get a license. The groups want more water to be released earlier in the year to help young salmon reach the ocean, while the districts say that water is needed for farming.
Licensing costs could be compared to a homeowner obtaining a permit for remodeling a kitchen years after the work was done, in order to sell the home, said Eric Wesselman, executive director of the Tuolumne River Trust.
"They've been getting a free ride for years and now it's time to get the permits," Wesselman said. "For years and years, they've been coming out ahead and they never want to pay a dime for anything. That's an unreasonable position.
"We absolutely believe they can manage the river in a way that sustains a sound, agriculture-based economy and also has high water quality, abundant fish and wildlife and recreation."
Bee staff writer Garth Stapley can be reached at firstname.lastname@example.org or (209) 578-2390.