March 24, 2011. CSPA and 6 allied conservation groups have vigorously supported the State Water Resources Control Board’s use of its Clean Water Act authority to require Merced Irrigation District to perform studies. The studies are needed in order for the Board to issue a Clean Water Act Section 401 Certification, a legal requirement for Merced ID to relicense its huge Merced River Hydroelectric Project.
For two years, conservation groups and resource agencies (including State Board staff) have advocated that the Federal Energy Regulatory Commission require Merced ID to perform studies of anadromous fisheries in the Merced River. By a procedural stratagem, Merced ID has convinced FERC not to require any studies of these fisheries. Refusing to allow further delay in the collection of information the Board knows it will need to issue a 401, the Board issued Water Rights Order 2011-03-EXEC on January 28, 2011 requiring Merced ID to perform studies.
Merced ID petitioned for reconsideration on February 28, attacking the Board’s authority to order the studies. More significantly, Merced ID improperly argued that the Board’s exercise of its Clean Water Act authority was limited in scope to the decisions made by FERC.
In a 20 page comment letter, conservation groups used extensive legal and factual analysis to support the Board and the Clean Water Act:
“FERC’s authority to request studies pursuant to its licensing regulations under the Federal Power Act does not preempt the Board from exercising its independent authority under the Clean Water Act to request information that will inform the development of a water quality certification for the project, or its authority under state law to regulate facilities outside of FERC’s jurisdiction.”
The State Board’s order and responses to it can be found on the Board’s website at http://www.waterboards.ca.gov/waterrights/water_issues/programs/water_quality_cert/ceqa_projects.shtml#ferc2179.