CSPA Opposes Turlock and Modesto Irrigation Districts’ Petition for Waiver of Clean Water Act

Published 11/23/2020  |  California Sportfishing Protection Alliance

Joining a growing list, Turlock and Modesto Irrigation Districts (Districts) filed a Petition for Declaratory Order with the Federal Energy Regulatory Commission (FERC or Commission) on October 2, 2020 asking that the Commission find that the State of California has waived certification under Section 401 of the Clean Water Act (CWA).  CWA Section 401 allows a state to issue a “water quality certification” that places mandatory conditions on a new federal permit or license.  The Districts are seeking a new FERC license for two hydropower projects on the Tuolumne River, the Don Pedro Project and the La Grange Project.

Previous requests for waiver have relied on FERC’s expansive interpretation of the court ruling in Hoopa Valley Tribe v. FERC (Hoopa Valley)[1].  In response to previous petitions, FERC granted waiver in finding that withdrawing and resubmitting an application for a certification was in many cases an unlawful circumvention of the state’s one-year deadline to issue a certification.  CSPA and others have challenged three of FERC’s previous decisions in court.[2]

The Districts’ petition relies on a different argument: that even though the California State Water Resourced Control Board denied the Districts’ applications for certification on two separate occasions, this denial “is in fact the functional equivalent of the arrangement rejected in Hoopa.”

In response to the Districts’ petition, CSPA and seven other “Conservation Groups” filed a Motion to Intervene in any FERC proceeding that would result in a decision on the Districts’ petition.  This Motion also contains several arguments in opposition to the Districts’ position. The Conservation Groups chose to file a motion because FERC did not clarify the procedural requirements to respond to the Petition.  Five days after Conservation Groups filed their motion, FERC clarified the procedural requirements, allowing an additional 30 days to comment.

[1]Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. Apr. 26, 2019), reh’g denied, No. 14-1271, 2019 WL 3928669 (D.C. Cir. Apr. 26, 2019), and cert. denied sub nom. California Trout v. Hoopa Valley Tribe, 140 S. Ct. 650, 205 L. Ed. 2d 410 (2019).

[2] See previous posts:  https://calsport.org/news/cspa-sues-ferc-over-waiver-of-clean-water-act/; https://calsport.org/news/wp-content/uploads/CSPA-Newsletter_-Turbulent-Waters-fall-2020.pdf; https://calsport.org/news/innews/ferc-declaratory-order-finding-waiver-of-california-section-401-authority-challenged-in-ninth-circuit-3/

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