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.

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