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.