The California Sportfishing Protection Alliance (CSPA) is pleased to report that the Federal Energy Regulatory Commission (FERC) issued an Order on September 5, 2023 that upholds the California State Water Board’s authority to require a “water quality certification” for new hydropower licenses for the Upper Drum-Spaulding, Lower Drum, and Deer Creek hydroelectric projects.
The Order ends a multiyear effort by PG&E to avoid regulation of these projects under Section 401 of the Clean Water Act.
Section 401 of the federal Clean Water Act grants states authority to certify that facilities receiving federal licenses or permits meet state water quality standards. Through these certifications, states require dam owners to preserve streamflows and water temperatures necessary for fish and aquatic life, and to protect uses like fishing and boating.
FERC’s Order finds that the State Water Board did not waive its authority to issue certification for the project. The Order states that the record lacks substantial evidence that the Board was complicit in circumventing the one-year deadline for certification.
The Order rejects PG&E’s central argument that the State Water Board caused FERC to delay issuing new licenses for the projects. PG&E voluntarily withdrew and resubmitted its requests for certification each year from 2013 through 2017. The State Water Board never failed to act within one year of request or certification, because PG&E itself withdrew its requests. Beginning in 2018, the State Water Board denied certification within one year of PG&E’s requests.
The new licenses for the three projects are still pending at FERC for reasons unrelated to certification.
In April 2021, the Foothills Water Network coalition[1] filed comments with FERC in opposition to PG&E’s Petition for Waiver. Writing on behalf of the coalition, CSPA argued:
The Commission Should Reject PG&E’s Petition for Waiver as Venue Shopping for Substantive Advantage Unrelated to Delay.
…PG&E’s issue with the water quality certification is one of substance, not of timing. PG&E simply seeks to avoid regulation under the Clean Water Act. As demonstrated by [PG&E’s] repeated invocation of clearly inapplicable Trump-era modifications to [Clean Water Act Section 401] …PG&E will argue against regulatory requirements regardless of how long advancing such argument prolongs the licensing process.
The September 5 Order follows the precedent set by the US Court of Appeals for the Ninth Circuit, which reversed FERC’s waiver of water quality certifications for the Yuba River, Yuba-Bear, Merced River, and Merced Falls hydroelectric projects. CSPA was a litigant in those consolidated cases.
FERC’s Order reverses previous FERC positions on waiver of Section 401 for hydroelectric projects. It is a milestone in the Hydropower Reform Coalition’s four-year campaign, led in substantial part by CSPA, to protect Section 401 of the Clean Water Act.
[1] Foothills Water Network’s member organizations include Foothills Water Network, 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 (formerly Northern California Council Federation of Fly Fishers), Save Auburn Ravine Salmon and Steelhead, Sierra Club and its Mother Lode Chapter, South Yuba River Citizens League, and Trout Unlimited.