One of CSPA’s many strategies in the past several years has been to defend the federal Clean Water Act from attack. Much of this defense has been in the context the Federal Energy Regulatory Commission’s (FERC) relicensing of hydropower projects. Section 401 of the Clean Water Act requires that an affected state certify that certain actions (like a FERC relicensing) conform to state water quality laws. In California, the State Water Board has the authority over these certifications.
Recent federal Energy legislation, pushed heavily by PG&E, would allow the Federal Energy Regulatory Commission (FERC) to reject a state’s decisions. Since FERC consistently make less protective decisions about rivers affected by hydropower than the State Water Board, this would be a bad change in law. CSPA and hundreds of other conservation groups fought this change in Congress for a year and a half, and so far we have defeated it.
In late November, 2016, Idaho Power Company filed a petition asking FERC to rule that the Federal Power Act preempts state law in a case in Oregon. The case involved the relicensing of the Hells Canyon hydroelectric project on the Snake River, where the Snake is the border between Idaho and Oregon. In CSPA’s view, this petition was not really about federal preemption of a specific state law. Rather, it was a collateral sneak attack on the state of Oregon’s exercise of Section 401 of the federal Clean Water Act. An adverse ruling would give FERC the power over the states that PG&E is trying to create in its Energy legislation.
CSPA decided that this attack was significant enough to warrant action, even though it was out of state. Working with two national groups, a state river organization from Idaho, an Oregon legal advocacy group, and two Snake River watershed groups, CSPA assembled a motion to dismiss Idaho Power’s petition. The motion was filed on December 30, 2016.