There’s less to NID’s Supreme Court Appeal than meets the eye

Article from YubaNet.

by Chris Shutes, Executive Director, California Sportfishing Protection Alliance

In a February 8, 2023 op-ed, the president of the Board of Directors of Nevada Irrigation District (NID) writes that an appeal to the US Supreme Court by NID could have “severe impacts” to NID and the community it serves. The op-ed omits the key facts on which the US Court of Appeals for the Ninth Circuit ruled last August. It also exaggerates the impacts to NID and obscures the issues.

In 2008, Nevada Irrigation District (NID) started “relicensing” its Yuba-Bear Hydroelectric Project. The Federal Energy Regulatory Commission (FERC) first licensed the Project, for 50 years, in 1963.

As part of the relicensing process, NID requested in 2012 that the State Water Resources Control Board issue a document called a “certification” under Section 401 of the Clean Water Act. The Clean Water Act is the nation’s bedrock law that protects water quality. Its goal is to keep America’s waters “fishable, swimmable, and drinkable.”

The 401 certification would, if issued, certify that NID’s hydroelectric project would comply with state water quality laws and standards. Like the new FERC license, the 401 certification would last 40-50 years.

The Key Facts: NID Didn’t Do its Homework

As part of the 401 certification process, NID was required to provide the State Water Board with an environmental report under the California Environmental Quality Act (commonly called CEQA).  In the 2012 letter in which NID requested certification, NID said it would complete CEQA, as the “lead agency.” That meant it promised to put a CEQA document together, go through a public process, and submit the document to the State Water Board.

NID didn’t do its homework. It didn’t complete CEQA. It didn’t even start. It’s that simple.

The Clean Water Act contains a one-year deadline from the date of a request for 401 certification to when the State Water Board must act on the request. After just under a year, instead of having the State Water Board deny certification because NID it hadn’t done its CEQA homework, NID withdrew and resubmitted its request, effectively starting over. The State Water Board didn’t make NID withdraw and resubmit its request. NID did that all by itself, and it did it five more times.

Then, in 2019, NID tried to leverage a new court ruling to avoid 401 certification altogether. It asked FERC to blame the State Water Board for not “acting” in one year. NID asked FERC to “waive” the State Water Board’s right to certify. This is something like blaming the teacher for your not graduating because the teacher let you drop the class.

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