FERC Denies Waiver of Clean Water Act for Tuolumne River Hydropower Projects

Published 1/20/2021  |  California Sportfishing Protection Alliance

The Federal Energy Regulatory Commission has denied a petition to waive water quality certification for the Don Pedro and La Grange Hydroelectric Projects on the Tuolumne River.  The January 19, 2021 denial is a rebuke to Turlock Irrigation District and Modesto Irrigation District (Districts), who jointly own and operate the projects.  The Districts had sought to piggyback on a series of waivers that FERC has granted in the last two years.  No soap.

The denial means that the State Water Board’s Final Water Quality Certification for the Projects, issued January 15, 2021, will stand unless overturned on appeal.

The controversy starts with the Clean Water Act’s one-year deadline for a state to grant or deny a certification.  Certification says a new federal permit or license will comply with state laws on water quality.  FERC justified other waivers of certification on the grounds of withdrawal and resubmittal by an applicant of its request for certification.  FERC held that this meant that the state did not “act” within one year.  CSPA and other conservation groups are currently litigating three such FERC waivers of certification for California hydropower projects.[1]

The Districts’ argument was a bridge too far, even for FERC.  The Districts argued that denial of certification “without prejudice” (allowing another application) was a “scheme” that was legally equivalent to withdrawal and resubmittal by the applicant.  The Order denying waiver succinctly states: “Based on the plain language of the statute, we find that on both occasions the California Board, in denying certification, ‘acted’ on the Districts’ request within one year.”

Theoretically, the Districts could appeal FERC’s ruling by “requesting rehearing.”  However, FERC’s unanimous vote against waiver does not augur well for such an appeal, or for potential subsequent legal challenge in federal court.  More likely, the theater of combat will shift to an appeal to the State Water Board and subsequent challenge in state court.

CSPA and other Conservation Groups opposed waiver twice, most recently in December 7, 2020 supplemental comments to FERC.[2]

CSPA and allied groups also submitted comments on the Draft Water Quality Certification for the Projects to the State Water Board.  Notably, the State Water Board’s Final Certification adopted the Conservation Groups’ recommendation to require increased summer flows in the downstream reach of the lower Tuolumne River in order to benefit the residents of Modesto and nearby communities.  The Certification’s rationale for the increase states in part: “[T]he record does not support the conclusion that 12 boatable days provides reasonable access to the urban and rural communities seeking boating recreation opportunities.”  It also notes: “Flows of 200 cfs and lower in the lower Tuolumne River are also associated with warm water temperature, water hyacinth growth, poor water quality, stagnant conditions that support warm water predatory fish, poor aesthetic quality, and inequitably affect access to natural resources for urban and rural communities.”

The Districts are certain to contest the Final Certification, which as written requires the flows adopted in the update of the Bay-Delta Plan.  Unless the State Water Board modifies the Bay-Delta Plan, this means the Districts will be required to allow 40% of the unimpaired February-June inflow to Don Pedro Reservoir to pass downstream.

The Final Certification is not perfect, but the State Water Board’s document significantly improves on the conditions that FERC is prepared to require of its own accord.  The fact that the Certification has withstood the initial challenge at FERC is a victory whose outcome was by no means certain.

[1] 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/

[2] For the first set of Conservation Groups’ comments, see https://calsport.org/news/cspa-opposes-turlock-and-modesto-irrigation-districts-petition-for-waiver-of-clean-water-act/

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