CSPA in the News
FERC Declaratory Order Finding Waiver of California Section 401 Authority Challenged in Ninth CircuitOct 30, 2020 Read Online
Fishing group sues recycling center over harm to environmentOct 7, 2020 Read Online
- CSPA Opposes Turlock and Modesto Irrigation Districts’ Petition for Waiver of Clean Water Act
- CSPA Early Fall 2020 Newsletter is Available Now
- NMFS Gives Stockton East and Irrigators All the Water in the Calaveras River
- CSPA Asks San Francisco Water Agency to Withdraw Voluntary Agreement
- CSPA Sues FERC over Waiver of Clean Water Act
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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). 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.
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.
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).
 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/
On September 14, 2020, the National Marine Fisheries Service (NMFS) and Stockton East Water District (Stockton East) issued a Final Habitat Conservation Plan (HCP) for the Calaveras River. The HCP will require a minimum flow of 20 cfs upstream of Stockton East’s major water supply diversion at Bellota Weir (River Mile 24). It will also require fish ladders and screens at several major diversions. However, the Plan allocates zero water to fish in the lower 24 river miles of the river. At Bellota Weir, Stockton East will recapture all of the required flow release from New Hogan Dam (River Mile 42).
Water supply operation currently blocks salmon and steelhead migration into the Calaveras River from its confluence with the San Joaquin River in Stockton to Bellota Weir. Migration opportunities in the 24 miles between those two points are currently limited to periods of flood control releases from New Hogan Dam during the non-irrigation season. Dozens of flashboard irrigation dams downstream of Bellota Weir block fish migration from March or April through October 15 every year.
CSPA was to our knowledge the only fishing or conservation organization that commented on the draft HCP and the accompanying draft Environmental Assessment. (See Calaveras River Plan Takes 14 Years to Keep All the Water, November 2019). CSPA’s top line comment stated:
It is not reasonable to devote zero stored water to a fisheries HCP, particularly in a watershed where storage is about double average annual runoff, and where additional future diversions for groundwater recharge are explicitly planned. …The arguments in the HCP against the pejoratively labelled “artificial” migration flows are unpersuasive, particularly because the analysis that purports to support these arguments limits evaluation to limited arbitrarily selected flow volumes.
In response, NMFS and Stockton East’s Final Environmental Assessment said they were right the first time: “SEWD analyzed the impacts to water storage in New Hogan from implementation of additional migration flows in Mormon Slough, a flood conveyance channel. This analysis indicated negative consequences to water storage, which wouldn’t support salmonid habitat conditions in the Calaveras River long-term.”
CSPA doesn’t think so. “Negative consequences to water storage” are a price of doing business, all the more when the storage dam captures all the water in three years out of four. The fish screens and fish ladders called for in the HCP won’t protect fish that never reach the 18 flowing miles of the Calaveras River upstream of Bellota Weir. One cannot rely on a few very wet water years to get fish into and out of a salmon and steelhead fishery.
In 2006, the State Water Resources Control Board put in abeyance CSPA’s public trust complaint regarding the operation of the Calaveras River, pending the outcome of the HCP. Since NMFS couldn’t find the courage to require any flow at all to get fish into and out of the Calaveras watershed, it may be time to ask the State Water Board to reopen CSPA’s complaint.
CSPA and thirteen other conservation and fishing organizations wrote a letter to the San Francisco Public Utilities Commission on September 9, 2020 requesting that the Commission withdraw its support for a proposed Tuolumne River Voluntary Agreement. CSPA and others also presented the request to the SFPUC meeting the same day.
The request follows a scientific peer review of the fish population models that provide much of the purported basis for the Voluntary Agreement. The review by Anchor QEA of Seattle reached the following conclusion about the salmon population model developed by the Turlock and Modesto irrigation districts:
The model, as configured, indicates that the status of the Chinook salmon population is extremely precarious and bold actions will be needed to prevent extirpation. This need, according to the model, would best be met by very substantial increases in flow releases during spring (the period of active smolt outmigration from the river). (Peer Review p. 3)
The review also rejected the repeated claim of SFPUC and the irrigation districts that reducing the number of bass and other predatory fish in the Tuolumne River would significantly increase the survival and populations of salmon:
[T]he Chinook salmon production model cannot identify the number of predators that would need to be removed or how much of a reduction in consumption would be required to achieve a significant increase in smolt-to smolt survival. The response from predator control is assumed, not predicted. (Peer Review p. 5, emphasis added)
The September 9 letter from conservation and fishing groups asks the SFPUC:
We urge the Commission to direct SFPUC staff to withdraw the flawed proposal for a Voluntary Agreement on the Tuolumne River and to cease making any claims of fishery benefits from the proposal, which are based on these flawed models. Instead of focusing on ways to reduce the amount of water flowing in the Tuolumne River, we encourage you to work with us to find ways to support investments in local and regional water supply projects that would create good paying local jobs, improve the resiliency of the water systems, and help sustain the economy with reduced diversions from the Tuolumne River. Across California, many water agencies are far ahead of the SFPUC in making these investments.
The SFPUC commissioners agreed to agendize the peer review at a future meeting.
The letter to SFPUC was updated on September 14 to reflect the addition of the Nature Conservancy as the fifteenth signatory. Otherwise, the letter was unchanged from September 9. The updated letter is available here:
CSPA and three other non-profit groups have sued the Federal Energy Regulatory Commission (FERC) in the Federal Appeals Court 9th Circuit in defense of the State of California’s authority to protect the Yuba and Bear Rivers. The lawsuit is the latest chapter in CSPA’s concerted opposition to FERC’s serial “waivers” of the application of Clean Water Act Section 401 to the issuance of FERC licenses for California hydropower projects. (For description and discussion, see previous posts here and here). Hydropower licenses have a term of 30 to 50 years.
CSPA is joined in the legal challenge by the South Yuba River Citizens League, Friends of the River, and the Sierra Club and its Mother Lode Chapter.
On 17 July 2020, shortly before trial, CSPA and its partners, California Water Impact Network and AquAlliance, settled a contentious 2015 lawsuit against the State Water Resources Control Board (State Board). The lawsuit alleged that the State Board had embraced a “pattern and practice” that failed: to comply with the Public Trust Doctrine; implement Sacramento River temperature management requirements; ensure that fish below dams be maintained in “good condition” and maintain minimum Clean Water Act standards in the Delta. The settlement agreement will greatly increase protection for seriously degraded fisheries by requiring the State Board to follow transparent procedures and to make specific findings in updated Bay-Delta water quality/flow standards and Sacramento River temperature criteria.
Central Valley pelagic and salmonid fisheries have experienced precipitous decline. The Public Trust Doctrine establishes powerful public property rights in natural resources. The settlement requires the State Board to conduct a full transparent evaluation of the specific Public Trust factors the State Board will consider and to make specific findings that new Bay-Delta Plan requirements will protect fish and wildlife.
Excessive temperatures have decimated Sacramento River salmonid fisheries. The settlement agreement requires the State Board to conduct a transparent Sacramento River Temperature Management process that addresses all controllable factors, including deliveries, and ensures adequate staffing, modeling and public review.
Fisheries below rim dams have long suffered from inadequate flow. Fish and Game Code Section 5937, which requires dam operators to release sufficient flow to keep “fish in good condition,” has long been ignored. The settlement agreement requires the State Board to specifically evaluate whether Bay-Delta updates are consistent with Section 5937.
Fish and Wildlife have disproportionately suffered during droughts as the State Board has temporarily relaxed water quality standards. The settlement agreement requires the State Board to conduct a transparent Public Trust analysis for Temporary Urgency Change Petitions.
Jason Flanders and the Aqua Terra Aeris Law Group represented CSPA et al. in this matter.
On 8 July 2020, CSPA and a coalition of fishing organizations sued the U.S. Department of the Interior, U.S. Bureau of Reclamation and Westlands, San Luis and Panoche Water Districts in federal court over a series of interim water service contracts and a series of permanent repayment (or conversion) contracts. The lawsuit alleges that the decisions by the Bureau allow environmentally harmful diversions by the Bureau’s Central Valley Project of massive quantities of freshwater from the Delta for consumptive use without the comprehensive environmental reviews and requirements required by the National Environmental Policy Act (NEPA) and the Central Valley Project Improvement Act (CVPIA). The Second Amended and Supplemental Complaint for Declaratory and Injunctive Relief incorporates an earlier 2016 complaint for approval of interim water service contracts and the 2020 reauthorization of the same water service contracts.
The Law Offices of Stephan C. Volker is representing CSPA et al. in this matter.
By Cindy Charles
The Federal Energy Regulatory Commission (FERC) continues to roll out waivers for water quality certifications for dam relicensings in California at an alarming rate. On June 22, CSPA and allies in the Foothills Water Network (Network) filed another Request for Rehearing on an “Order on Waiver of Water Quality Certification”. The order was issued in the relicensing of Yuba County Water Agency’s (YCWA) Yuba River Development Project (Project). The Project occupies waters in the Yuba River watershed.
The Order says that the California State Water Resources Control Board (State Water Board) waived its authority under section 401 of the Clean Water Act (CWA) to issue water quality certification for the relicensing of the Project. This finding is once again based on the Commission’s recently adopted interpretation of the one-year deadline for a state to act on a request for water quality certification under CWA section 401. This interpretation reverses the Commission’s longstanding position that an applicant’s withdrawal-and-resubmittal of a request triggers a new one-year period for the State to act. Whenever implemented, the Commission’s new interpretation of waiver will prevent states from placing conditions in hydropower licenses to protect water quality. FERC licenses last 30 to 50 years.
Prior to June 18th, FERC had issued waivers for the Placer County Water Agency’s Middle Fork American River Project, Southern California Edison’s Big Creek system, PG&E’s Kilarc-Cow Creek Project, and Nevada Irrigation District’s Yuba-Bear Project. On June 18th, FERC issued waivers for Merced Irrigation District’s Merced River and Merced Falls projects and for South Feather Water and Power Agency’s South Feather Project. This brings to seven the number of FERC orders waiving Section 401 certification in California since the Hoopa Valley decision in January 2019.
In the Rehearing Request for the YCWA project, the Network argues that YCWA, not the State Water Board, has delayed certification. YCWA committed to act as lead agency under the California Environmental Quality Act (CEQA) for preparing the environmental document required to support the State Water Board’s certification. In the three years since it filed its first 401 request, YCWA did not begin, let alone complete, the CEQA process. YCWA argued that the State Water Board should bear the consequences for YCWA’s failure to prepare the CEQA document, and FERC agreed.
The Rehearing Request argues that waiver is not warranted because, unlike the Hoopa Valley decision, there was no written agreement between YCWA and the State Board to not process a 401 certification request. The record does not show the State Water Board was unwilling to act on YCWA’s 401 request once YCWA submitted the CEQA document that was a prerequisite to the State Water Board’s action.
Further, the license is not ready for final decision. FERC staff’s own delay in preparing a biological assessment to inform the required Endangered Species Act consultation for the Project has delayed consultation with the National Marine Fisheries Service regarding the Project’s potential adverse effects on federally-listed spring-run Chinook salmon, steelhead, and green sturgeon. Thus, the certification process by the State Board for the Project has not contributed to actual delay in the relicensing proceeding.
The Network requests that FERC reverse its determination that the State Water Board waived its 401 authority in this relicensing and direct YCWA to complete the CEQA document that is necessary for the Water Board to act on a certification request. Further, the Network requests that FERC direct YCWA to submit a new request for water quality certification within 30 days of YCWA’s certification of the final CEQA document.
 The Foothills Network is comprised of American Rivers, American Whitewater, California Outdoors,California Sportfishing Protection Alliance, Friends of the River, Gold Country Fly Fishers, Northern California Council of Fly Fishers International, Sierra Club Mother Lode Chapter, South Yuba River Citizens League, and Trout Unlimited.
 Interpretation relies on the U.S. Court of Appeals for the D.C. Circuit’s (D.C. Circuit) decision in Hoopa Valley Tribe v. Federal Energy Regulatory Commission (Hoopa Valley) issued January 2019.
It’s a pretty sweet deal when you don’t do your homework for five years and then get the principal to say you don’t have to do it at all, and, by the way, we’re retroactively giving you an “A” in the course and firing the mean old teacher. It’s exactly this kind of gaming the system that a trailer bill now in the State legislature is meant to prevent.
The trailer bill (at this moment, part of AB-92) would allow the State Water Board to make sure that federal licenses protect water quality in California. It responds to recent efforts to make it procedurally impossible for the State Water Board to meet deadlines under Section 401 of the Clean Water Act. Section 401 allows the State Water Board to place conditions in new licenses that the Federal Energy Regulatory Commission (FERC) issues every thirty to fifty years for hydroelectric projects.
More specifically, the trailer bill would allow the State Water Board to issue a Section 401 “water quality certification” for a new hydropower license before environmental review under the California Environmental Quality Act (CEQA) was complete. It would also allow the State Water Board to modify the certification after a final CEQA document was issued. The substance of review would not change. What would change would be the sequence so that the Water Board can meet someone else’s deadlines.
Assemblymember Adam Gray from Merced published an op-ed on June 22 opposing the trailer bill (“A Trojan Horse with a State Water Grab Inside“). Mr. Gray opposes the bill that would give the State Water Board the tools it needs to meet its deadlines. Without those tools, it will be harder for the State Water Board to place conditions in hydropower licenses that irrigation districts in his assembly district are currently seeking from FERC.
The need for the trailer bill has arisen because FERC recently started over-relying on a court decision to “waive” Section 401 certifications that are not issued within a one-year deadline, no matter why. FERC’s disturbing new practice began over a year ago.
The need also arises from California law. In California, issuance of a Section 401 certification requires CEQA. When an agency of the state, like an irrigation district, seeks a new FERC license, it can choose to be the lead agency for CEQA to support Section 401. Both Merced Irrigation District, for the Merced River Project, and Turlock and Modesto irrigation districts, for the Don Pedro Project, chose to be lead agencies for CEQA as part of their responsibilities during their FERC relicensings. However, none of them have even started, let alone finished, CEQA. Without CEQA to support a Section 401 decision, the State Water Board cannot act.
Even worse, Merced Irrigation District, after delaying CEQA for five years, asked FERC to waive certification for its project because the State Water Board had taken too long! Just last week, FERC actually agreed and waived certification for Merced’s project.
Opposing the trailer bill is not about protecting the “public participation” that CEQA provides, as Mr. Gray frames it. It is about exploiting a procedural loophole so an irrigation district can skate.
The legislature should not allow itself to be confused about how the Section 401 trailer bill would protect state law and water quality.
CSPA and American Whitewater (AW) have defended proposed measures to keep summer water temperatures in the North Fork Feather River cold enough for trout. The defense came in comments to the Federal Energy Regulatory Commission (FERC) in opposition to a petition by PG&E to waive water quality certification for PG&E’s Upper North Fork Feather Project (Project 2105).
Relicensing of Project 2105 wrapped up fifteen years ago with a partial settlement agreement. The Project 2105 Settlement left water temperature unresolved. FERC left any water temperature improvements to the State Water Board and its water quality certification for the relicensing (certification under the Clean Water Act that the new license would comply with water quality law). On April 24, 2020, as the State Water Board was on the cusp of issuing a draft certification and a revised draft environmental impact report (EIR), PG&E petitioned FERC to “waive” the certification for procedural reasons. The State Water Board issued its Draft Certification and Revised Draft EIR on May 15, 2020. Unless FERC were to reverse its position from fifteen years ago, waiver would mean that water temperatures in most of the North Fork would remain too warm in the summer for trout for the next forty to fifty years.
CSPA and AW’s comments state: “It is fair to say that Project 2105 and associated PG&E projects in the North Fork Feather River watershed could not have been designed to heat up water more efficiently than they do under their present-day configuration.” The comments document how existing conditions in the North Fork Feather violate the Central Valley Region Basin Plan. Project 2105 heats water in excess of standards and leaves water too warm to support cold freshwater habitat.
The State Water Board’s Draft Certification would require that PG&E improve water temperatures in the North Fork Feather by releasing more water in summer into the river, instead of bypassing the river through PG&E’s upper power system. The Draft Certification abandons the idea of a “thermal curtain” at Lake Almanor. The thermal curtain was a proposed engineering addition to PG&E’s power intake that local residents and anglers universally reviled because of impacts to the trout fishery in Lake Almanor.
CSPA and AW, consistent with previous comments from Plumas County, also call on FERC and the State Water Board to require a new facility that would add oxygen to the cold water in Lake Almanor. Much of the cold water in Lake Almanor has too little dissolved oxygen to support trout. In the summer, this leaves trout the Hobson’s choice of water that’s too warm but has enough oxygen or water that’s cold but without enough oxygen. An oxygenation facility called a “Speece Cone” is successfully used by East Bay MUD at Camanche Dam. A similar facility could be installed and operated at Lake Almanor with funds already allocated for improving coldwater habitat.
PG&E and FERC need to protect coldwater habitat for the trout in the North Fork Feather River and Lake Almanor. The best way to do that is to let the water quality certification for Project 2105 stand and to implement an oxygenation facility at Lake Almanor.
We need your help to ask Governor Newsom to urge the State Water Board to move forward on the update of the Bay-Delta Quality Control Plan.
San Francisco Bay and Delta ecosystems are near collapse. The Voluntary Agreements process has failed. We need the State Water Board to quickly resume its approved plan to implement the San Joaquin River objectives and adopt and implement Sacramento River and Delta objectives as soon as possible.
Tell the Governor we can’t wait any longer to take action to protect the San Francisco Bay-Delta. Take a minute and sign onto the letter several environmental groups will send to Governor Newsom below.
Signing the letter supports CSPA and our decades-long advocacy to increase Delta inflow and outflow and restore Delta fisheries.
Letter to Governor Newsom:
Dear Governor Newsom,
The Bay is in the throes of a man-made crisis. Six Bay fish species are now officially listed as endangered and many others are on the brink. If action isn’t taken soon, the Bay risks becoming a dead zone for the fish and wildlife that have lived here for millennia.
The cause of the crisis is clear, and so is the solution. Fresh water that once flowed from rivers in the Sierra Nevada to the Delta and Bay has been diverted at unsustainable levels. Some rivers lose up to 90% of their flow for human use—and about 80% of that goes to industrial agriculture.
But fish need water to survive. And many other creatures need fish to survive. As fisheries crumble, it sets off a domino effect throughout the food web, starving everything from orcas to ospreys.
People are also affected. California’s fleet of small fishing boats, which depends on production of Chinook Salmon in the Bay’s watershed, is flailing, and indigenous people and other subsistence fishing communities are being deprived both of an important food source and their cultural heritage.
For years, you have tried to negotiate a compromise with Big Ag. But the latest draft agreement has died—leaving room for a better approach. It’s crucial that you use this opportunity to protect San Francisco Bay with a plan that’s based on science rather than the demands of powerful water districts.
The good news is that there’s already a plan to stop the looming extinction crisis. The State Water Board’s Bay-Delta Plan would set guidelines to prevent the ecosystem from spiraling into collapse. We are asking you to insist that the Water Board move forward with the Bay-Delta Plan and set freshwater guidelines in our thirsty rivers once and for all.
You have shown great foresight by acting swiftly and decisively in the face of COVID-19. As a result, California has avoided the terrible death toll taking place in other parts of the world and country. Now we need you to apply your leadership to the ecological crisis unfolding in the Bay and Delta. The State Water Board can avert a crisis in San Francisco Bay—in fact, it is legally required to do so. But if you continue to pursue voluntary half-measures, rather than strong protections, soon it will be too late.
A Deal is a Deal – El Dorado Irrigation District Seeks to Add More Diversions from SF American River
By Cindy Charles
CSPA and a coalition of environmental and recreation organizations submitted comments in response to the April 17, 2020 Notice of Preparation of an Environmental Impact Report (EIR) for El Dorado Irrigation District’s (EID) proposed modification of Water Right Permit 21112.
EID proposes to add points of diversion and rediversion to its existing permit. The new points of diversion would be upstream of the heavily used whitewater boating section of the South Fork American River. Nearly 30 years ago, EID, through the El Dorado County Water Agency, formally agreed to divert water exclusively from Folsom Reservoir, which is downstream of the whitewater boating reaches. Now EID is reversing that commitment in seeking upstream points of diversion and rediversion.
Our joint comment letter reminds the current EID management and Board to honor their predecessors’ commitment and not pursue the request to divert water from upstream of Chili Bar Dam.
The letter also states that should EID persist in pursuing the addition of points of diversion and rediversion to Permit 21112, the signatories of the letter plan to protest the District’s petition once it is noticed by the State Water Board. In addition, the letter outlines a number of recommendations a Draft Environmental Impact Report (DEIR) should address if EID moves forward on this project. Some key recommendations include:
- A detailed description, with modeling, of current and future operations under the Proposed Project.
- Disclose and analyze actual and updated estimates of future demand in EID’s service area that would be served by the requested new points of diversion and rediversion.
- Disclose the impacts of the Proposed Project and evaluate mitigations of those impacts. Among the impacts are to Folsom Reservoir, Lower American River, cumulative impacts on the Sacramento River and the Sacramento – San Joaquin Bay Delta, Impacts to lake levels at Silver Lake and Caples Lake. Impacts to whitewater boating, aquatic resources, increased wildfire risks.
- Describe planned or foreseeable future water transfers under the Proposed Project and whether, how and to what degree the requested changes in permit conditions will assist and incentivize transfers of water.
The South Fork of the American River downstream of Chili Bar Reservoir is one of the premier and most used year-around whitewater recreation waterways in the entire United States. It draws rafters and kayakers from around the United States and the world. Such visitation provides a major source of income to El Dorado County businesses. Boating opportunities further upstream, on the South Fork American between Slab Creek Reservoir and Chili Bar Reservoir, are largely dependent on “spill” flows, which could be less frequent and lower in volume under the proposed new diversions.
CSPA is particularly concerned about how the proposed new points of diversion could allow a “county of origin” water right to enable increased water transfers. County of origin filings, such as the one under which Permit 21112 was issued, were established in 1927 to protect mountain and foothill watersheds from losing their water supply to wealthier and at the time more developed urban and agricultural users in the Central Valley and on the coast. Water transfers that the changes to Permit 21112 could enable would likely involve selling water to the very entities from which the county of origin laws originally sought protection. County of origin laws were set up to meet the actual development needs of upcountry counties, not to enable upcountry counties to cash in by diverting more water from the state’s rivers.
 Permit 21112 allows EID to divert up to 17,000 acre-feet per year (AFY) from the South Fork American watershed. Under the Permit, EID stores water in three storage reservoirs high in the watershed: Lake Aloha, Caples Lake, and Silver Lake. At present, the sole point of direct diversion and rediversion in the South Fork American watershed downstream of these storage reservoirs is Folsom Reservoir.
Foothills Network Files for Rehearing of 401 Waiver on Nevada Irrigation District’s Yuba-Bear Project
By Cindy Charles
CSPA and allies in the Foothills Water Network (Network) filed a Request for Rehearing on an “Order on Waiver of Water Quality Certification” for Nevada Irrigation District’s (NID) Yuba-Bear Hydroelectric Project. The Network filed the Request with the Federal Energy Regulatory Commission (FERC) on May 15, 2020.
Section 401 of the federal Clean Water Act requires an applicant to obtain a certification by a state agency that operation of a project under a new FERC license will be consistent with the state’s standards for water quality. In California, the State Water Resources Control Board (State Water Board) is responsible for issuing 401 certifications for hydroelectric projects.
On February 19, 2019, NID requested that FERC “confirm” the State Water Board had waived its 401 authority in connection with the relicensing of the Project. The request relied on the U.S. Court of Appeals for the D.C. Circuit’s decision in Hoopa Valley Tribe v. Federal Energy Regulatory Commission (Hoopa Valley).
Waiver of certification can place a 40-to-50-year restriction on the state of California’s ability to regulate operation of this project on the Middle Yuba, South Yuba and Bear Rivers.
On April 16, 2020, FERC granted NID’s request, relying on Hoopa Valley and its own precedent to find that the State Water Board had waived its 401 authority.
The Network’s main arguments in support of a rehearing include:
1) FERC’s order relies on an expanded reading of the Hoopa Valley decision under an entirely different set of facts. In Hoopa Valley, the court found that resubmissions for 401 certification could not be new requests because PacifiCorp and the States had entered into a written agreement not to process the 401 requests while PacifiCorp and other parties pursued an alternative path to decommission rather than relicense the lower project dams. There was no such written agreement between NID and the State Water Board regarding 401 certifications. NID voluntarily submitted and withdrew certification requests from the State Water Board.
2) California requires an environmental review under CEQA prior to the State Water Board’s action on a 401 certification request. NID chose to be the Lead Agency for CEQA for the 401 certification of its project, but has not even started, let alone completed, a CEQA document, such as an Environmental Impact Report or an Environmental Assessment. Therefore, NID has failed to comply with procedural prerequisites to the State Water Board’s certification decision.
In the Rehearing Request, the Network asks that FERC reverse its determination that the State Water Board waived its 401 authority for purposes of this relicensing, direct NID to complete the CEQA document that is necessary for the State Water Board to act on a certification request, and direct NID to submit a new request for water quality certification within 30 days of NID’s certification of the final CEQA document.
Letter Sent to Governor – Preserve the Application of the Clean Water Act to California’s Hydroelectric Projects
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.
On 11 May 2020, CSPA, AquAlliance, California Water Impact Network and the South and Central Delta Water Agencies filed a federal lawsuit against the U.S. Bureau of Reclamation (USBR) and the San Luis & Delta-Mendota Water Authority over the EIS/EIR for the proposed Long-Term Water Transfer Project (Project). The Project proposes to transfer as much as 600,000 acre-feet of water from sellers upstream of the Sacramento/San Joaquin Delta to buyers south of the Delta. The lawsuit alleges violations of the National Environmental Policy Act, Administrative Procedures Act, California Environmental Quality Act and Public Trust Doctrine.
The Project would have devastating impacts to degraded Sacramento-San Joaquin Delta fisheries and water quality by exacerbating the suite of existing problems. Because it relies on “groundwater substitution” for transferred water, it would have detrimental effects on groundwater and connected surface water and habitats in the counties of origin.
In 2015, the Bureau had proposed a similar ten-year water transfer program. CSPA and allies litigated the EIR/EIS and prevailed in 2018, when the judge vacated the project. Subsequently, the Bureau simply cobbled together pieces of the invalidated 2015 EIS/EIR interwoven with fragmented updates in a new environmental document. The new 2019 EIS/EIR fails to correct the inadequacies in the earlier document plus inadequately addressing the changed scope of the project and changed environmental conditions.
The Aqua Terra Aeris Law Group and Law Offices of Michael Jackson are representing CSPA, AquAlliance and CWIN and the Soluri Meserve Law Corporation are representing South and Central Delta Water Agencies.
Risky Business Again – Merced Irrigation District Selling Water Out of District in Critically Dry Year
By Cindy Charles
In March, Merced Irrigation District (Merced ID) filed a petition with the CA State Water Board (Board) for a temporary change to transfer up to 45,000 acre-feet of water to out-of-district water agencies. Merced ID plans to sell its water even though the San Joaquin Index shows us in a Critically Dry Year for 2020. CSPA filed protest comments with the Board against approval of the sale. CSPA argues that this water sale will not best serve the public interest, is contrary to law and will have adverse environmental impacts. Merced Irrigation District seeks to sell water in the Critically Dry 2020 water year to make up for budget shortfalls. As revenues from the sales of electricity continue to fall, revenues from irrigation water sales are inadequate to cover costs, including an ever-increasing pension liability.
The Board of Directors of the Merced Irrigation District was well aware of the likelihood of very low inflows to its reservoirs, as documented in Board Meeting Minutes from several meetings in early 2020. In addition, Merced ID’s approved fiscal 2021 budget states that Lake McClure is anticipated to be at minimum pool level at the conclusion of the 2020 irrigation season.
By petitioning for a water transfer to out-of-district buyers, Merced ID is gambling that next year’s precipitation will backfill storage in Lake McClure. The proposed transfer will deplete carryover storage to the greatest allowed degree. We already have seen what happens to Merced ID in this circumstance.
In 2012-2014, Merced gambled that precipitation in a following year would backstop depletion of its stored water. Following decisions on how much water to deplete from storage in 2012 and 2013, Merced ID was left with almost no water to deliver in 2014; Merced ID applied for a variance to its instream flow requirements and carryover storage minimum in Lake McClure, and had to rescue the remaining O. mykiss (rainbow trout/steelhead) in the lower Merced River as water temperatures reached lethal conditions there.
In addition to its water storage challenges, Merced Irrigation District overlies a critically over drafted groundwater basin. In a 2017 letter to the State Water Board opposing the update of the Bay-Delta Water Quality Control Plan, Merced ID argued that increasing flows in the lower Merced River would worsen the conditions of the groundwater basin. The proposed transfer will take water out of a critically over drafted groundwater basin in a Critically Dry year—another risky decision.
If water year 2021 is a Dry or Critically year, Merced ID will likely not have sufficient water to meet its instream flow needs or to maintain water temperatures in Lake McClure sufficient to keep fish in the lower Merced River in good condition downstream of Crocker-Huffman Dam. We’ll likely see another emergency fish rescue then.
Merced ID has got to stop relying on out of district water sales to balance its finances. The reliance on regulatory variances and waivers during dry year sequences as an accepted business practice is contrary to the public interest and is detrimental to the environment.
For the full comment letter click here http://calsport.org/news/wp-content/uploads/CSPA-Protest-Merced-ID-Transfer-Final-043020.pdf
 MID proposes to transfer the water from July 2020 through September 2020 to the following agencies: Santa Clara Valley Water District, Belridge Water Storage District, Berrenda Mesa Water District, Dudley Ridge Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District.
On 5 May 2020, CSPA and a coalition of fishing and tribal groups (CSPA et al.) sued the State and Regional Water Boards, Bureau of Reclamation and San Luis & Delta-Mendota Water Authority over illegal discharges of pollutants from the Grasslands Bypass Project into the San Joaquin River. The Lawsuit alleges violations of the federal Clean Water Act, Porter-Cologne Water Quality Act, Delta Reform Act, California Environmental Quality Act and Public Trust Doctrine.
The Bypass Project drains substantial quantities of selenium, salts, sulfates, mercury, arsenic and other pollutants collected from 97,400 acres of farmland in the Central Valley and discharges those contaminates into the San Joaquin River. These discharges frequent exceed aquatic life criteria.
Late last year, CSPA et al. prevailed at the Ninth Circuit Court of Appeals on a 2011 lawsuit alleging that discharges from Grasslands Project required a federal NPDES discharge permit. However, the Regional Water Board issued significantly less stringent state Waste Discharge Requirements (WDRs) for the Bypass discharges. In January 2019, the WDRs were appealed to the State Water Board. The subject lawsuit was filed after the State Board declined to hear the appeal. Of note, CSPA also has a current CEQA, CWA and Public Trust lawsuit against the Bureau of Reclamation and San Luis & Delta-Mendota Water Authority regarding the 2019 certification of the Addendum to the Final 2009 EIS/EIR for the Grassland Bypass Project.
The Law Offices of Stephan C. Volker is representing CSPA et al. in both actions.
CSPA has identified 69 issues that the Department of Water Resources (DWR) must confront in its forthcoming Environmental Impact Report (EIR) for the new incarnation of its “Delta Conveyance” project. Delta Conveyance means a proposed tunnel under the Sacramento-San Joaquin River Delta that would move water from northern California south. CSPA expects to oppose the as yet unbranded Delta Do-Over as vigorously as CSPA opposed its predecessors, the “Bay-Delta Conservation Plan” and the “California WaterFix.”
CSPA made its recommendations in an April 17, 2020 comment letter in response to the Notice of Preparation of the EIR. The Notice of Preparation initiates the “scoping” process of the California Environmental Quality Act, or CEQA. CSPA filed its scoping comments jointly with California Water Impact Network, AquAlliance and California Water Research.
CSPA comments that the new Delta Conveyance Draft EIR must describe changes that new conveyance will cause to the operation of upstream reservoir (Trinity, Shasta, Oroville, Folsom). DWR’s previous EIR for WaterFix said there wouldn’t be any changes, as does DWR’s January 2020 EIR for the long term operation of the State Water Project. CSPA, along with many water users upstream of the Delta, argued during the WaterFix hearings in 2016-2018 that DWR would hold less water in reservoirs when the new tunnels made it easier to ship more water south.
CSPA’s letter states that the Draft EIR must clarify the role of the Bureau of Reclamation, a federal agency, in the new Conveyance. The Draft EIR must state whether Reclamation as a participant will comply with California law, and how DWR will assure such compliance. Reclamation and California agencies are currently disputing how and when California law applies to Reclamation.
Many of CSPA’s comments are directed at avoiding a repeat of the multi-year game of hide the ball that DWR went through for the previous tunnel project, California WaterFix, and its predecessor, the Bay-Delta Conservation Plan. The dynamic of rushing ahead and then trying to correct in mid-process led to two separate EIR’s for different versions of tunnel projects, plus a supplement, over the course of six years. DWR painted undeveloped and changing pictures of its project, and then asked the public to ‘trust us’ on the unclear and incomplete issues.
CSPA’s final recommendation is a plea for a wholly new document:
[T]he DEIR must be a stand-alone document that does not rely on references to previous iterations of CEQA documents for the Bay-Delta Conservation Plan and/or the “California WaterFix.”… Previous EIR’s and supplements for the Bay-Delta Conservation Plan and California WaterFix are 90,000 pages in volume and were already daunting due to the difficulty in understanding which sections which were superseded by subsequent documents. Retention of previous CEQA documents would force even a well-informed reader to conduct a treasure hunt through earlier documents to extract pertinent information.
The Draft EIR is expected in 2021.
CSPA and allies in the Foothills Water Network have filed a Response in Opposition to Yuba Water Agency’s Request for Waiver of water quality certification for the Yuba River Development Project. The Network filed its letter with the Federal Energy Regulatory Commission (FERC) on April 2, 2020. Waiver of certification would place a 40-to-50-year restriction on the state of California’s ability to regulate operation of this huge hydroelectric project on the Yuba River.
FERC is conducting a proceeding to relicense the Yuba River Development Project. The applicant to relicense the project is Yuba Water Agency (formerly and still referred to by FERC as Yuba County Water Agency, or YCWA). Section 401 of the federal Clean Water Act requires an applicant to obtain a certification by a state agency that operation of the project under a new FERC license will be consistent with the state’s standards for water quality and protection of “beneficial uses.” Section 401 allows the state to place conditions in the FERC license to assure this consistency and protection. In California, the State Water Resources Control Board (State Water Board) is responsible for issuing 401 certifications for hydroelectric projects.
The Clean Water Act imposes a one-year deadline for a state to issue a 401 certification. Failure to meet the deadline results in “waiver:” the state loses its chance to place conditions in the FERC license. The statute itself does not define when the one-year clock starts. In the past, FERC had a de facto policy of allowing applicants to withdraw applications for certification and resubmit them before the clock ran out. This avoided denial of certification by the state.
In January 2019, the U.S. Court of Appeals in Washington D.C. found in Hoopa Valley Tribe v. FERC that the State Water Board had waived its right to issue certification for the Klamath River Hydroelectric Project. The Court held that the State Water Board had made an illegal agreement with the owner of the Klamath project to delay certification to allow time for parties to complete a settlement of issues.
Since the ruling in Hoopa Valley Tribe v FERC, FERC has issued a series of orders expanding the application of the Court’s decision. FERC has found that when applicants withdrew and resubmitted applications for certification, this amounted to waiver, even without an explicit agreement between applicant and the certifying state agency. FERC has applied its new criteria retroactively, even for cases when states had already issued certifications.
YCWA’s Request for Waiver joined the parade of filings by hydropower operators that seek to avoid state oversight. But YCWA has a problem. Issuance of a 401 certification requires analysis under the California Environmental Quality Act (CEQA). YCWA chose to be the Lead Agency for CEQA for the 401 certification of its project. That means it promised to produce a CEQA document, such as an Environmental Impact Report or an Environmental Assessment. But YCWA has not even started, let alone completed, a CEQA document to support the State Water Board’s decision on 401 certification.
The Foothills Water Network’s comments therefore conclude:
The record shows that the State Water Board has diligently acted in processing YCWA’s application. Contrary to YCWA’s assertions, the current delays in the 401 proceeding are due to YCWA’s failure to provide information necessary to fully evaluate the Project’s potential impacts on water quality over the term of any new license by preparing the environmental document required under state law.
The Commission should find that the California State Water Resources Control Board has not waived Clean Water Act § 401 Water Quality Certification for the relicensing of the Yuba River Development Project. On the contrary, the Commission should order YCWA to complete CEQA and submit a new application with a completed CEQA document forthwith, or, in the alternative, deny YCWA’s application for relicensing the Yuba River Development Project for lack of diligent prosecution.
 For a description of other such requests and CSPA’s earlier responses, see CSPA Defends Section 401 of the Clean Water Act at: http://calsport.org/news/wp-content/uploads/bsk-pdf-manager/2019/12/2019-08-Summer-Edition.pdf
The Hydropower Reform Coalition submitted comments on March 10, 2020 in opposition to proposed changes to the implementation of the National Environmental Policy Act (NEPA). The Coalition’s comments state that the proposed new NEPA rule would make analysis worse and would harm the environment.
Analysis under NEPA is required whenever there is an action by a federal agency that may have impacts on the environment, including the issuance of permits and licenses. The Trump administration’s Council on Environmental Quality issued the proposed new rule for NEPA in January 2020.
If put into practice, the proposed new NEPA rule would limit the alternatives to a proposed action that an Environmental Impact Statement (EIS) would have to analyze. In particular, alternatives that would achieve similar outcomes and have fewer environmental impacts would no longer require analysis if they would require actions by third parties.
The proposed new NEPA rule would also eliminate the requirement for an EIS to evaluate the “cumulative” effects of actions, and possibly even their indirect environmental effects. The most frequently cited analysis that this would eliminate from NEPA is the effect of an action in promoting climate change. But there are many more ways in which the proposed rule would limit analysis and thus allow federal actions and decisions to harm the environment.
The Coalition’s comments “use licensing proceedings before the Federal Energy Regulatory Commission (FERC or the Commission) to illustrate the negative impacts certain proposed rules would have on federal administrative proceedings.” For instance: suppose FERC were to limit its NEPA analyses in licensing hydroelectric projects to the requirements of the new NEPA rule. This would put FERC’s NEPA analysis in conflict with FERC’s Federal Power Act responsibilities to evaluate each “waterway” in issuing each project license (even when parts of the waterway are outside the area of one hydropower “project”). Under NEPA, this would be a “cumulative” effect, no longer required under the new rule. The Coalition’s comments use real world examples to describe how following the new NEPA rule would let utilities and FERC off the hook for evaluating the effects of power projects and licensing decisions.
The Coalition’s comments also point out that the new NEPA rule would present similar conflicts with other cornerstone environmental laws like the Endangered Species Act.
Water Power Law Group drafted the Coalition’s comments, with assistance from CSPA and American Whitewater.
Read the Hydropower Reform Coalition’s comments on the proposed NEPA rule here.
CSPA also signed on to comments drafted by the Center for Biological Diversity in opposition to the proposed NEPA rule; those comments are posted here.