By Cindy Charles

CSPA, as a leading member of a coalition of environmental and fishing organizations, sent a joint letter to Governor Newsom on May 11, 2020 urging his Administration to prioritize action on an urgent threat to California’s rivers, streams, and aquatic life.  The increasing avalanche of efforts by the Federal Energy Regulatory Commission (FERC) to waive Section 401 water quality certifications under the federal Clean Water Act (CWA) for FERC-licensed hydroelectric projects will lead to long term damage of our rivers and fisheries.

Section 401 of the Clean Water Act gives states a once-in-a-generation chance to place conditions on hydropower projects that aren’t owned by the federal government.  Under CWA Section 401, a federal agency may not issue a permit or license to conduct any activity that may result in a discharge into waters of a state unless the state issues a Section 401 water quality certification.  The state determines if the discharge will comply with the state’s approved water quality plans and laws.  The certification can include specific conditions related to water quality requirements that automatically become conditions in the federal license or permit.

FERC licenses run 30 to 50 years.  Many FERC licenses now in effect for hydroelectric dams in California were granted prior to the adoption of the Clean Water Act in 1972.  Today, when there are multiple new FERC licenses pending in California, agencies of the federal government are attacking California’s ability to issue or deny Section 401 water quality certifications.  If these federal efforts are successful, California will be excluded from ensuring that dams with wide-reaching impacts on rivers meet state water quality standards for still another 30 to 50 years.

A January 2019 D.C. Circuit Court decision (Hoopa Valley Tribe v. FERC) found that California’s State Water Board and the Oregon Department of Environmental Quality had waived their right to issue Section 401 certifications for the Klamath River Project.  The Court found that a written agreement to delay certification between the project operator and the states of California and Oregon, in order to complete settlement, violated the Clean Water Act’s requirement to complete certification in one year.  The Court found that the practice of the Klamath applicant of withdrawing and resubmitting its applications prior to each one-year deadline in order to avoid the states’ deadline to act, in the context of an agreement to have an “indefinite” delay,  prevented FERC from exercising its authority to issue hydropower licenses.  Since that time, FERC has applied an overly broad reading of this court decision and imposed a narrow interpretation of the CWA’s one-year deadline in a raft of relicensing proceedings, none of which had an agreement like that for the Klamath Project.

FERC has declared waiver of certification for Nevada Irrigation District’s Yuba-Bear Project on the Middle Yuba, South Yuba and Bear Rivers, Placer County Water Authority’s Middle Fork American River Project, PG&E’s Kilarc-Cow Creek Project, and six projects belonging to Southern California Edison on Big Creek.

Meanwhile, the Environmental Protection Agency under the Trump administration’s leadership has almost completed a rulemaking that would eliminate many Clean Water Act protections.  If implemented, the new rule would weaken the scope of certification, allow federal agencies to overrule the states, and allow federal agencies to create and enforce process requirements and deadlines that will hamstring states in completing their work.  (See previous post: http://calsport.org/news/hydropower-reform-coalition-opposes-another-trump-administration-attack-on-the-clean-water-act/)

The May 11 letter to the Governor urges his Administration to: (1) oppose federal regulatory changes that would remove or limit Section 401 water quality certifications from hydroelectric dam licensing or relicensing, (2) challenge pending and current waivers, and (3) urge state legislative action to defend the Clean Water Act and prevent future waivers of California’s authority to issue Section 401 water quality certifications.

Now, more than ever, California needs to defend and enforce its water quality standards.

For the complete letter go here.