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CSPA

Request for Rehearing

Lower Mokelumne River

Lower Mokelumne River Hydroelectric Project, FERC Project No. 2916-004

East Bay Municipal Utility District

December 1998

CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
P.O. BOX 357
QUINCY, CA 95971

United States of America

Before the Federal Energy Regulatory Commission

Lower Mokelumne River Hydroelectric Project

FERC Project No. 2916-004

East Bay Municipal Utility District, Licensee

Lower Mokelumne River Watershed, Tributary to San Francisco Bay-Delta
Estuary thence Pacific Ocean

State of California

Commission Order of November 27, 1998

Commission Order Approving Settlement Agreement and Amending License

Request for Rehearing By the California Sportfishing Protection Alliance
and the Committee to Save the Mokelumne

In accordance with the Commission's rules and procedures, the
California Sportfishing Protection Alliance (hereinafter known as "the
Alliance") and the Committee to Save the Mokelumne (hereinafter known as
"the Committee") hereby file with the Commission a request for rehearing
regarding the Commission Order of November 27, 1998 concerning the
Commission's Order approving settlement agreement and amending license
in the matter of FERC Project 2916-004.

The Commission Order of November 27, 1998

1. On November 27, 1998, the Commission issued the Order approving
settlement agreement and amending license in the matter of FERC Project
2916-004. The Commission stated in the its Order that it approved with
minor modifications the Offer of Settlement filed on June 26. 1997, and
amended the license for the Lower Mokelumne River Hydroelectric Project
No. 2916 accordingly.

The Commission stated and claimed in its Order that the Settlement,
filed by the licensee, East Bay Municipal Utility District (hereinafter
known as EBMUD"), the U.S. Department of the Interior's Fish and
Wildlife Service (hereinafter known as "USFWS"), and the California
Department of Fish and Game (hereinafter known as "CDFG"), resolved
long-standing issues concerning measures needed to ensure sufficient
water quality and quantity to sustain anadromous fish in the Lower
Mokelumne River. The Commission stated and claimed that the amended
license provides, among other measures, additional instream flows,
reservoir elevation goals, funding for non-flow enhancement measures,
and new study and monitoring requirements.

We reference Commission Order of November 27, 1998 regarding the
Commission Order Approving Settlement and Amending License; Lower
Mokelumne River Hydroelectric Project No. 2916-004.

Standing

2. The Alliance is a statewide organization who represents anglers
throughout California as well as anglers in the greater Lower Mokelumne
River watershed areas. The CSPA has been extensively involved for many
years with the protection of water quality, the anadromous fisheries,
and the environment of the Lower Mokelumne River significantly degraded
by the operation of the Lower Mokelumne River Project No. 2916 for many
years.

We reference all filing made by the Alliance and the administrative
record before the Federal Energy Regulatory Commission, and also we
reference all filing made by the CSPA and the administrative record
before the California State Water Resources Control Board, including the
record in the Penn Mine matter.

3. The Committee is a local organization who represents local citizens
and anglers in the greater Mokelumne River watershed areas. The
Committee has also been extensively involved for many years with the
protection of water quality, the anadromous fisheries, and the
environment of the Lower Mokelumne River significantly degraded by the
operation of the Lower Mokelumne River Project No. 2916 for many years.

We reference all filing made by the Committee and the administrative
record before the Federal Energy Regulatory Commission, and also we
reference all filing made by the Committee and the administrative record
before the California State Water Resources Control Board, including the
record in the Penn Mine matter.

Licensee

4. The licensee for the Lower Mokelumne River Project No. 2916 is EBMUD.

Statement of Reasons by the CSPA and the Committee in Filing the Request
for Rehearing With the Commission

5. The Commission's Order of November 27, 1998 is in error of law, and
also is unreasonable and not in the public interest as follows:

The Commission Order of November 27, 1998 Violated the Authority of the
California State Water Resources Control Board Concerning the Beneficial
Uses of the State's Water

6. The California State Water Resources Control Board has Section 401 of
the Clean Water Act authority to regulate water quantity to protect the
beneficial uses of the state's water in the Lower Mokelumne River at the
Lower Mokelumne River Project No. 2916. In PUD No. 1 v. Washington
Department of Ecology, this case determined that the States have
authority under Section 401 of the federal Clean Water Act to require
Federal Energy Regulatory Commission licensed hydroelectric projects to
bypass flows to protect instream beneficial uses. See PUD No. 1 v.
Washington Department of Ecology (1994) 114 S.Ct. 1900.

The State of California State Water Resources Control Board has water
rights authority to regulate water rights held by EBMUD regarding the
beneficial uses of the state's water in the Lower Mokelumne River at
FERC Project No. 2916. In the early 1990's a hearing was held by the
California State Water Resources Control Board in the matter of a
complaint filed against EBMUD by the Alliance and the Committee. A long
term hearing was held by the California State Water Resources Control
Board. The Alliance and the Committee reference the hearing record.

At that hearing, the CDFG testified that the flow, water quality, and
anadromous fisheries protection recommendations in the CDFG's Lower
Mokelumne River Fisheries Management Plan would be in compliance with
state law and protect the river environment affected by the Lower
Mokelumne River Project No. 2916. The CDFG arbitrarily subordinated
their written and oral testimony before the California State Water
Resources Control Board when the CDFG privately agreed to the Offer of
Settlement between the EBMUD, USFWS, and CDFG.

Also at that hearing, the USFWS testified that their recommendations
would provide the necessary flows and would protect the anadromous
fisheries and water quality of the Lower Mokelumne River affected by the
Lower Mokelumne River Project No. 2916. The USFWS arbitrarily
subordinated their written and oral testimony before the California
State Water Resources Control Board when the USFWS privately agreed to
the Offer of Settlement between the EBMUD, USFWS, and CDFG.

To date the California State Water Resources Control Board has not made
a decision concerning the hearing records regarding the complaint filed
by the Alliance and the Committee against EBMUD.

The Commission's Order of November 27, 1998 violated the water quality
authority of the California State Water Resources Control Board pursuant
to the provisions of Section 401 of the federal Clean Water Act when the
Commission failed to remand the matter back to the California State
Water Resources Control Board before making a decision in the Offer of
Settlement matter before the Commission so that the California State
Water Resources Control Board had the opportunity to regulate the
beneficial uses of the state's water in the Lower Mokelumne River at the
Lower Mokelumne River Project 2916, as well as to determine whether the
Offer of Settlement provides for the protection of the beneficial uses
of the state's water of the Lower Mokelumne River.

The Commission should rescind its Order of November 27, 1998 and remand
the Offer of Settlement back to the California State Water Resources
Control Board which allows the California State Water Resources Control
Board the opportunity and authority to protect the beneficial uses of
the state's water of the Lower Mokelumne River affected by the Lower
Mokelumne River Project No. 2916, pursuant to the provisions of Section
401 of the federal Clean Water Act.

The Commission's Order of November 27, 1998 also violated the water
rights authority of the California State Water Resources Control Board
pursuant to the provisions of the Federal Power Act, and the provisions
of the California Water Code, when the Commission failed to remand the
matter back to the California State Water Resources Control Board before
making a decision in the Offer of Settlement matter before the
Commission so that the California State Water Resources Control Board
had the opportunity to regulate the beneficial uses of the state's water
in the Lower Mokelumne River at the Lower Mokelumne River Project 2916,
as well as to determine whether the Offer of Settlement provides for the
protection of the beneficial uses of the state's water of the Lower
Mokelumne River, pursuant to the California Water Code, and other
provisions of state law related to water rights.

The Commission should rescind its Order of November 27, 1998 and remand
the Offer of Settlement back to the California State Water Resources
Control Board which allows the California State Water Resources Control
Board the opportunity and authority to protect the beneficial uses of
the state's water of the Lower Mokelumne River affected by the Lower
Mokelumne River Project No. 2916, pursuant to the provisions of the
California Water Code, and other provisions of state law related to
water rights.

The Provisions of the Federal Endangered Species Act Were Violated by
the Commission's Order of November 27, 1998 - Central Valley Steelhead
Species

7. According to the Commission's Order of November 27, 1998, on April
21, 1997, the U.S. National Marine Fisheries Service (hereinafter known
as the "USNMFS") concluded consultation for winter-run chinook salmon
and conferencing for Central Valley Steelhead. Also, according to the
Commission's Order of November 27, 1998, on March 26, 1998, the
Commission requested the USNMFS concurrence that consultation is not
necessary for Central Valley Steelhead. On May 14, 1998, the USNMFS
filed a letter confirming that conferencing previously done for Central
Valley Steelhead is adequate and serves as Section 7 consultation for
that species, and also concluded that the Offer of Settlement is not
likely to adversely affect the proposed-threatened Central Valley
fall-run/late-fall run chinook salmon.

Recently, Central Valley Steelhead, which includes Lower Mokelumne
River Steelhead, were listed as "threatened" by the USNMFS under the
protection of the provisions of the federal ESA.

The federal Endangered Species Act of 1973, as amended (16 U.S.C. 1531
et seq.) (federal ESA), provides for the conservation of ecosystems upon
which threatened and endangered species of fish, wildlife, and plants
depend, both through Federal action and encouraging the establishment of
State programs.

The Offer of Settlement was not an approved State of California
program, but was negotiated privately by EBMUD, USFWS, and CDFG at
non-public meetings without public participation or recorded verbatim
minutes distributed to the Alliance and the Committee, including being
distributed to the public, in conflict and violation of the provisions
of the State of California Brown Act. See California Public Resources
Code Sections 4950 and Sections 54950.5 et seq. The CDFG is a state
agency and is required to comply to the provisions of the Brown Act.

Section 4950 of the California Public Resources Code states as follows:

"Section 4950". "Declaration of Public Policy". In enacting this
chapter, the Legislature [California] finds and declares that the public
commissions, boards, and councils and the other public agencies in this
State exist to aid in the conduct of the people's business. It is the
intent of the law that their actions should be taken openly and that
their deliberations be conducted openly. - The people of this State do
not yield their sovereignty to the agencies which serve them. The
people, in delegating authority, do not give their public servants the
right to decide what is good for the people to know and what is not good
for them to know. The people insist on remaining informed so that they
may retain control over the instruments they have created."

In fact the Offer of Settlement was not submitted to the California
State Water Resources Control Board by the EBMUD, USFWS, and the CDFG,
subject to the opportunity for a public hearing request by the Alliance
and the Committee, and the public, and also subject to written and oral
testimony by the USNMFS concerning its informal claims of April 21, 1997
and March 26, 1998 regarding whether or not Central Valley Steelhead
would be jeopardized by the Offer of Settlement. Also subject to written
and oral testimony by the USFWS and the CDFG, and cross examination by
the Alliance and the Committee, and other interested parties, revealing
the truth and facts why the USFWS and the CDFG arbitrarily subordinated
their written and oral testimony before the California State Water
Resources Control Board at the Lower Mokelumne River hearing in 1992.

The Federal Power Act, as amended, requires the Commission to comply
with state law.

The Commission should rescind the Order of November 27, 1998 and allow
the State Water Resources Control Board to hold a public hearing to
determine whether or not the Offer of Settlement and the informal claims
of the USNMFS will effect the beneficial uses of the state's water,
including affecting the Lower Mokelumne River steelhead resources.

The Commission should also rescind the Order of November 27, 1998 and
investigate and determine whether the provisions of the California Brown
Act were violated by CDFG in developing, approving, and submitting the
Offer of Settlement to the Commission.

Section 7 of the federal ESA requires Federal agencies, such as the
Commission, to insure that any action authorized, funded or carried out
by them is not likely to jeopardize the continued existence of listed
species or modify their critical habitat. Action agencies, such as the
Commission, are required to consult with the USNMFS, in the case of the
Central Valley and Lower Mokelumne River Steelhead, when there is
discretionary Federal involved or control over the action. Regulations
guiding Section 7 consultation are found in Title 50 of the Code of
Federal Regulations, Part 402.

Conferences are conducted when the Federal agency, such as the
Commission, determines that a Federal action is likely to jeopardize the
continued existence of the proposed species or result in the destruction
or adverse modification of the proposed critical habitat.
Conferencing for the Lower Mokelumne River steelhead was conducted by
the Commission and the USNMFS prior to the Central Valley Steelhead
being listed as "threatened" by the USNMFS under the protection of the
provisions of the federal ESA.

Section 4(d) of the federal ESA provides that whenever a species is
listed as "threatened", such as the Central Valley and Lower Mokelumne
River Steelhead, the USNMFS shall (mandatory) issue regulations deemed
necessary and advisable to provide for the conservation of the species.
Conservation means the use of all methods and procedures which are
necessary to bring any endangered or threatened species to the point at
which the measures provided pursuant to the federal ESA are no longer
necessary.

If a regulation were to be promulgated, as it should have for Central
Valley and Lower Mokelumne River Steelhead, pursuant to Section 4(d) of
the federal ESA, a proposed rule would be published in the Federal
Register, and interested parties, such as the Alliance and the
Committee, and the public, would be provided the opportunity (due
process) to review and comment on the proposal. Comments from interested
parties such as the Alliance and the Committee, including the public,
would be addressed in the final determinations made on the rule. In
addition to having to comply all laws and regulations (e.g. NEPA), the
USNMFS would also conduct an internal Section 7 consultant on the
proposed rule so that effects of the proposed rule on listed Central
Valley and Lower Mokelumne River Steelhead could be assessed.

Central Valley Steelhead were listed as threatened by the USNMFS,
however, the USNMFS has not promulgated special regulations for Central
Valley Steelhead, which includes the steelhead resources of the Lower
Mokelumne River, as mandated by Section 4(d) of the federal ESA.

The Commission's Order of November 27, 1998 violated Section 4(d) of
the federal ESA by not ordering any specific protection measures which
are consistent with and in accordance with the Section 4(d) rule making
regulation of the federal ESA for Central Valley Steelhead and Lower
Mokelumne River Steelhead.

Because the Section 4(d) regulations for "threatened" Central Valley
and Lower Mokelumne River Steelhead have not been promulgated by the
USNMFS nor has the Section 7 consultation on the proposed rule has not
been initiated and completed by the Commission and the USNMFS so that
the proposed regulations could be assessed in any decision made by the
Commission, the Commission has no other choice but to rescind the
Commission Order of November 27, 1998, until the Section 4(d) rule
process has been completed, pursuant to section 4(d) of the federal ESA.
Consequently, as stated above, the Commission Order of November 27, 1998
should be rescinded by the Commission so that the Commission is in full
compliance with Section 4(d) and other provisions of the federal
Endangered Species Act.

The Commission's Order of November 27, 1998 Violated the Provisions of
the National Environmental Policy Act

8. An agency must prepare a supplemental Environmental Impact Statement
(EIS) if new information is sufficient to show that the recommended
action will affect the quality of the human environment in a significant
manner or to a significant extent not already considered. We reference
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989).

Though the Commission completed a final EIS many years ago for the
modification of the Lower Mokelumne River Project No. 2916, the
Commission failed to consider new information that would significantly
effect the quality of the human environment, and consequently issued the
Order of November 27, 1998 without first preparing a supplemental EIS in
violation of the provisions of the National Environmental Policy Act.

The following is the new environmental information that was not
considered, disclosed, evaluated, and mitigated by the Commission when
it approved the Commission Order of November 27, 1998:

(a) The Commission's FEIS did not disclose, evaluate, and mitigate, the
water quality certification authority and conditions which have not to
date been set forth by the State of California State Water Resources
Control Board to protect the beneficial uses of the Lower Mokelumne
River, and the effects to the beneficial uses of the Lower Mokelumne
River resulting from the modification of the state's water affected by
the Lower Mokelumne River Project No. 2916, and also resulting from the
effects to beneficial uses of the Lower Mokelumne River resulting from
the Offer of Settlement. See the above shown comments in no. 6 of this
filing.

The Commission failed to prepare a supplemental EIS which disclosed,
evaluated, mitigated, and ordered water quality certification conditions
as determined by the State of California State Water Resources Control
Board to protect the beneficial uses of the state's water of the Lower
Mokelumne River affected by the Lower Mokelumne River Project No. 2916,
pursuant to Section 401 of the federal Clean Water Act. See the above
shown comments in no. 6 of this filing.

For this reason the Commission should rescind the Commission's Order of
November 27, 1998 and prepare a supplemental EIS as required by federal
law.

(b) The Commission's FEIS did not disclose, evaluate, and mitigate, the
results of the Lower Mokelumne River water right hearing and complaint
by the Alliance and the Committee against EBMUD before the California
State Water Resources Control Board.

The Commission failed to prepare a supplemental EIS for the Commission
Order of November 27, 1998, which disclosed, evaluated and mitigated
the forth coming results of the Lower Mokelumne River water right
hearing and complaint by the Alliance and the Committee against EBMUD
still pending before the California State Water Resources Control Board.
See the above shown comments in no. 6 of this filing.

The Commission failed to prepare a supplemental EIS for the Commission
Order of November 27, 1998, which disclosed, evaluated, mitigated, the
forth coming Lower Mokelumne River water right terms and conditions
ordered by the State of California State Water Resources Control Board
in the matter of the Alliance and the Committee complaint against EBMUD
to protect the beneficial uses of the state's water of the Lower
Mokelumne River affected by the Lower Mokelumne River Project No. 2916,
pursuant to the California Water Code and all other applicable state
statutes and regulations pertaining to water rights. See the above shown
comments in no. 6 of this filing.

For this reason the Commission should rescind the Commission's Order of
November 27, 1998 and prepare a supplemental EIS as required by federal
law.

(c) The final EIR prepared by the Commission did not disclose and
evaluate the proposed listing of "threatened" Central Valley Steelhead
and Lower Mokelumne River Steelhead, and did not disclose and evaluate
the protection measures for "threatened" Central Valley Steelhead and
Lower Mokelumne River Steelhead resulting from proposed regulations to
be adopted by the USNMFS under Section 4(d) of the federal ESA. See the
above shown comments in no. 7 of this filing.

The Commission failed to prepare a supplemental EIS for the Commission
Order of November 27, 1998, which disclosed, evaluated, and mitigated
the listing of "threatened" Central Valley Steelhead and Lower Mokelumne
River, and the direct, indirect, and cumulative effects to "threatened"
Lower Mokelumne River Steelhead and their habitat. See the above shown
comments in no. 7 of this filing.

The Commission failed to prepare a supplemental EIS for the Commission
Order of November 27, 1998, which disclosed and included in the
Commission's Order the Section 4(d) regulations of the federal ESA
adopted by the USNMFS for the protection of Central Valley Steelhead and
Lower Mokelumne River Steelhead. See the above shown comments in no. 7
of this filing.

For this reason the Commission should rescind the Commission's Order of
November 27, 1998 and prepare a supplemental EIS as required by federal
law.

(d) The final EIS prepared by the Commission did not disclose, evaluate,
and mitigate the new supply of water by EBMUD from water being proposed
by EBMUD to be diverted from the American River at the Folsom South
Canal.

The Commission failed to prepare an supplemental EIS for the Commission
Order of November 27, 1998, which disclosed, evaluated, and mitigated a
new supply of water for EBMUD diverted from the American River from the
Folsom South Canal, and the related benefits to EBMUD, and the adverse
environmental effects to the flow alternative in the Offer of Settlement
selected by the Commission in its Order of November 27, 1998.

The Commission failed to prepare a supplemental EIS for the Commission
Order of November 27, 1998, which disclosed, evaluated, and mitigated
the cumulative effects to "threatened" American River Steelhead, and
also the cumulative effects to American River chinook salmon, resulting
from the interbasin transfer of water from the American River to EBMUD
water conduits in the Lower Mokelumne River.

For this reason the Commission should rescind the Commission's Order of
November 27, 1998 and prepare a supplemental EIS as required by federal
law.

(e) The Commission did not include in the FEIS the direct, indirect, and
cumulative effects to the human environment of the Lower Mokelumne River
watershed resulting from the terms and conditions of the Offer of
Settlement between EBMUD, USFWS, and CDFG.

The Commission failed to prepare a supplemental EIS for the Commission
Order of November 27, 1998, which disclosed, evaluated, and mitigated
the direct, indirect, and cumulative effects to the human environment of
the Lower Mokelumne River watershed resulting from the terms and
conditions of the Offer of Settlement between EBMUD, USFWS, and CDFG.

For this reason the Commission should rescind the Commission's Order of
November 27, 1998 and prepare a supplemental EIS as required by federal
law.

(f) Diversions of water made by EBMUD on the Lower Mokelumne River
effects the Bay-Delta Estuary. There is an on-going hearing process
regarding water rights and the effects to inflow to the Bay-Delta from
all diversions, which includes diversions of water from the Mokelumne
River Watershed, being held by the California State Water Resources
Control Board.

The FEIS could not have disclosed and evaluated any decision by the
California State Water Resources Control Board in the on-going Bay-Delta
water rights process.

The Commission Order of November 27, 1998 was premature until a
decision on the on-going water rights process pertaining to the Bay
Delta is made by the California State Water Resources Control Board. The
Commission's Order of November 27, 1998 should be rescinded until a
decision by the California State Water Resources Control Board has been
made and is incorporated into a supplemental EIS.

For this reason the Commission should rescind the Commission's Order of
November 27, 1998 and prepare a supplemental EIS as required by federal
law.

In conclusion, there is a significant amount of new environmental
information and environmental circumstances in which were not disclosed,
evaluated, and mitigated in the FEIS by the Commission as shown above.
The Commission should rescind the Commission Order of November 27, 1998
as shown above, and prepare a supplemental EIS which discloses,
evaluated, and mitigates all of the new environmental information and
environmental circumstances.

Toxic Heavy Metals and Other Toxic Material Deposited into Camanche
Reservoir by the Long Term Operation of Penn Mine Not Properly Addressed
and Mitigated by the Commission in the Commission's Order of November
27, 1998, Pursuant to the Provisions of the Federal Clean Water Act, and
the Provisions of the National Environmental Policy Act

9. The Commission's Order of November 27, 1998 improperly describes the
Penn Mine toxic water quality matter. The Commission's Order did not
disclose the recent court and settlement actions between the Alliance,
the Committee, EBMUD, and the California State Water Resources Control
Board. See California Sportfishing Protect Alliance and Committee to
Save the Mokelumne River v. East Bay Municipal Utility District and the
California State Water Resources Control Board. In the settlement of the
litigation by the Alliance and the Committee, EBMUD and the California
State Water Resources Control Board agreed to a $10,000,000 cleanup of
the Penn Mine site.
The Commission Order of November 27, 1998 did not disclose and mitigate
the toxic heavy metals and sulfates, and other toxic materials deposited
in Camanche Reservoir resulting from toxic discharges from Penn Mine
since the construction of Camanche Reservoir.

Toxic heavy metals and other toxic material in Camanche Reservoir has
the potential to cause vast adverse environmental damage to the
anadromous fisheries and water quality of the Lower Mokelumne River, and
also could have adverse environmental effects to the Bay Delta Estuary.
Ten million people drink Bay Delta water and could be adversely
effected.

The Commission's Order of November 27, 1998 failed to provide any
mitigation measures other then maintaining reservoir levels at Camanche
Reservoir, pursuant to the provisions of the federal Clean Water Act, to
reduce and eliminate toxic heavy metals and sulfates, and other toxic
elements deposited in Camanche Reservoir resulting from toxic discharges
from Penn Mine since the construction of Camanche Reservoir.

The Commission has a responsibility and duty to enforce the provisions
of the federal Clean Water Act and prevent adverse impacts to water
quality resulting from any FERC licensed project which the Commission
has approved.

The Commission should rescind its Order of November 27, 1998 and
prepare a supplemental EIS which properly describes and fully mitigates
toxic heavy metals and sulfates, and other toxic materials deposited in
Camanche Reservoir resulting from toxic discharges from Penn Mine since
the construction of Camanche Reservoir, pursuant to the provisions of
the federal Clean Water Act.

California Department of Fish and Game Signing of the Settlement
Agreement was a Gross Violation of State of California Law and Must be
Rescinded by the Commission

10. The settlement agreement violated State of California law. The
California Fish and Game Commission under Sections 2070-2097 of the
California Fish and Game Code is vested with the authority to designate
threatened and endangered species and to designate actions to protect or
manage those species. The settlement agreement usurps the California
Fish and Game Commission's authority for any present or future state
commission designated threatened or endangered species which may be
affected by the project. The California Department of Fish and Game, a
separate entity from the state commission, has no authority to sign any
agreement which includes such provisions. The California Department of
Fish and Game has not complied with state law in signing the settlement
agreement. California Fish and Game Code 2090 requires consultation on
all actions and projects by state agencies affecting threatened or
endangered species. The California Department of Fish and Game has
internal coordination procedures to assure its own compliance. No such
internal consultation has occurred.

The settlement agreement is in violation of state law in that it
precluded and prohibits analysis of future project related impacts as
required under the California Environmental Quality Act, Public
Resources Code 21000 et seq. The California Department of Fish and Game
has no authority to sign any agreement which provides, requires, or
mandates violation of state law nor does it have any authority to waive
requirement of compliance.

The Commission must rescind the settlement agreement and the
Commission's Order of November 27, 1998 because the California
Department of Fish and Game violated state law when the Department
signed the Offer of Settlement.

The Settlement Agreement Has No Scientific Basis and Totally Conflicts
with Sworn Oral and Written Testimony by the California Department of
Fish and Game

11. At the Lower Mokelumne River hearing in the early 1990's before the
California State Water Resources Control Board in the complaint filed by
the Alliance and the Committee against EBMUD, the Alliance, the
Committee, and the California Department of Fish and Game testified that
the recommendations in the CDFG Lower Mokelumne River Fisheries Plan
would fully protect the anadromous fisheries, water quality, and the
ecosystem of the Lower Mokelumne River to the Bay Delta. Their testimony
was based on expert witness testimony based on the results of years of
on-site scientific studies prepared by the CDFG.

In the Commission's Order of November 27, 1998, the Order stated that
Friends/Whitewater argue that more water needs to be released into the
bypass reaches, based on the California Department of Fish and Game's
establishment in February 1996 of a Steelhead Restoration and Management
Plan. However, the Commission alleged that "There is nothing new here",
and that the Steelhead Plan recommends implementing the California Fish
and Game's 1991 Lower Mokelumne River Fisheries Management Plan. The
Commission claims that the Steelhead Plan was considered in the EIS, and
that, moreover, the CDFG was certainly aware of its own Steelhead Plan
when it executed the Settlement.

The written and oral testimony made by representatives of the
California Department of Fish and Game at the hearing before the
California State Water Resources Control Board in 1992 concerning the
CDFG's Lower Moklumne River Fisheries Management Plan were based on
years of scientific studies, in accordance with state law.

The Offer of Settlement and the Commission's Order of November 27,
1998 approving the Settlement was not based on scientific studies and
is in conflict with oral and written testimony made by the California
Department of Fish and Game before the California State Water Resources
Control Board, and is also in conflict with state law.

The Commission's Order of November 27, 1998 should be rescinded by the
Commission until the California Department of Fish and Game submits
written testimony by their expert witnesses to the Commission which
justifies that the terms and conditions in the Offer of Settlement were
based on new scientific studies pursuant to state law.

The Commission's Order of November 27, 1998 Does Not Resolve
Long-Standing Issues

12. The Commission's Order of November 27, 1998 claims that the Order
and Settlement resolves long-standing issues concerning measures needed
to ensure sufficient water quality and quantity to sustain anadromous
fish in the Lower Mokelumne River. The Alliance and the Committee
believe the Commission's Order of November 27, 1998 and the Settlement
do not resolve long-standing issues concerning measures needed to ensure
sufficient water quality and quantity to sustain anadromous fish in the
Lower Mokelumne River.

Relief Requested

The Alliance and the Committee request the Commission to rescind the
Commission's Order of November 27, 1998 as stated and shown above.

Respectfully Submitted

William Jennings, Chairman
Committee to Save the Mokelumne
3536 Rainier Avenue
Stockton, CA 95204
Bus Tel: 209-464-5090; Fax: 209-464-5174

Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue
Woodland, CA 95695
Bus Tel: 530-661-0997; Fax: 530-661-0541

Robert J. Baiocchi, Consultant
For: California Sportfishing Protection Alliance
and Committee to Save the Mokelumne
P.O. Box 357
Quincy, CA 95971
Bus Tel: 530-836-1115; Fax: 530-836-2062

Dated: December 21, 1998

Service List

The Secretary
Federal Energy Regulatory Commission
888 First Street, N.E.
Washington, D.C. 20426
(the original and 15 copies)

Jim Crenshaw, President
California Sportfishing Protection Alliance
1248 East Oak Avenue, Suite D
Woodland, CA 95695

Bill Jennings, Chairman
Committee to Save the Mokelumne
3536 Rainier Avenue
Stockton, CA 95204

Ms. Maureen Rose
Friends of the River, Inc.
California Hydro Reform Coalition
128 J Street, 2nd Floor
Sacramento, CA 95814-2207

Mr. John Gangemi, Conservation Director
American Whitewater Affiliation
782 Swan River Road
Big Fork, MT 59911

Ms. Jacqueline Schafer, Director
California Department of Fish and Game
1416 Ninth Street
Sacramento, CA 95814

Mr Jim Canaday, 401 Coordinator
Division of Water Rights
California State Water Resources Control Board
P.O. Box 2000
Sacramento, CA 95812-2000

Mr. Wayne White, State Supervisor
U.S. Fish and Wildlife Service
3310 El Camino Avenue, Suite 130
Sacramento, CA 95821-6240

Mr. Jon A. Myers, Manager
Water Resources Planning
East Bay Municipal Utility District, Licensee
375 Eleventh Street
Oakland, CA 94607-4240

Interested Parties