By Cindy Charles

The Federal Energy Regulatory Commission (FERC) continues to roll out waivers for water quality certifications for dam relicensings in California at an alarming rate.  On June 22, CSPA and allies in the Foothills Water Network[1] (Network) filed another Request for Rehearing on an “Order on Waiver of Water Quality Certification”.  The order was issued in the relicensing of Yuba County Water Agency’s (YCWA) Yuba River Development Project (Project).  The Project occupies waters in the Yuba River watershed.

The Order says that the California State Water Resources Control Board (State Water Board) waived its authority under section 401 of the Clean Water Act (CWA) to issue water quality certification for the relicensing of the Project.  This finding is once again based on the Commission’s recently adopted interpretation of the one-year deadline for a state to act on a request for water quality certification under CWA section 401.[2]  This interpretation reverses the Commission’s longstanding position that an applicant’s withdrawal-and-resubmittal of a request triggers a new one-year period for the State to act.  Whenever implemented, the Commission’s new interpretation of waiver will prevent states from placing conditions in hydropower licenses to protect water quality. FERC licenses last 30 to 50 years.

Prior to June 18th, FERC had issued waivers for the Placer County Water Agency’s Middle Fork American River Project, Southern California Edison’s Big Creek system, PG&E’s Kilarc-Cow Creek Project, and Nevada Irrigation District’s Yuba-Bear Project.  On June 18^th, FERC issued waivers for Merced Irrigation District’s Merced River and Merced Falls projects and for South Feather Water and Power Agency’s South Feather Project.  This brings to seven the number of FERC orders waiving Section 401 certification in California since the Hoopa Valley decision in January 2019.

In the Rehearing Request for the YCWA project, the Network argues that YCWA, not the State Water Board, has delayed certification.  YCWA committed to act as lead agency under the California Environmental Quality Act (CEQA) for preparing the environmental document required to support the State Water Board’s certification.  In the three years since it filed its first 401 request, YCWA did not begin, let alone complete, the CEQA process.  YCWA argued that the State Water Board should bear the consequences for YCWA’s failure to prepare the CEQA document, and FERC agreed.

The Rehearing Request argues that waiver is not warranted because, unlike the Hoopa Valley decision, there was no written agreement between YCWA and the State Board to not process a 401 certification request.  The record does not show the State Water Board was unwilling to act on YCWA’s 401 request once YCWA submitted the CEQA document that was a prerequisite to the State Water Board’s action.

Further, the license is not ready for final decision.  FERC staff’s own delay in preparing a biological assessment to inform the required Endangered Species Act consultation for the Project has delayed consultation with the National Marine Fisheries Service regarding the Project’s potential adverse effects on federally-listed spring-run Chinook salmon, steelhead, and green sturgeon.  Thus, the certification process by the State Board for the Project has not contributed to actual delay in the relicensing proceeding.

The Network requests that FERC reverse its determination that the State Water Board waived its 401 authority in this relicensing and direct YCWA to complete the CEQA document that is necessary for the Water Board to act on a certification request. Further, the Network requests that FERC direct YCWA to submit a new request for water quality certification within 30 days of YCWA’s certification of the final CEQA document.

[1] The Foothills Network is comprised of 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, Sierra Club Mother Lode Chapter, South Yuba River Citizens League, and Trout Unlimited.

[2] Interpretation relies on the U.S. Court of Appeals for the D.C. Circuit’s (D.C. Circuit) decision in Hoopa Valley Tribe v. Federal Energy Regulatory Commission (Hoopa Valley) issued January 2019.

By Cindy Charles

CSPA and a coalition of environmental and recreation organizations submitted comments in response to the April 17, 2020 Notice of Preparation of an Environmental Impact Report (EIR) for El Dorado Irrigation District’s (EID) proposed modification of Water Right Permit 21112.[1]

EID proposes to add points of diversion and rediversion to its existing permit.  The new points of diversion would be upstream of the heavily used whitewater boating section of the South Fork American River.  Nearly 30 years ago, EID, through the El Dorado County Water Agency, formally agreed to divert water exclusively from Folsom Reservoir, which is downstream of the whitewater boating reaches.  Now EID is reversing that commitment in seeking upstream points of diversion and rediversion.

Our joint comment letter reminds the current EID management and Board to honor their predecessors’ commitment and not pursue the request to divert water from upstream of Chili Bar Dam.

The letter also states that should EID persist in pursuing the addition of points of diversion and rediversion to Permit 21112, the signatories of the letter plan to protest the District’s petition once it is noticed by the State Water Board. In addition, the letter outlines a number of recommendations a Draft Environmental Impact Report (DEIR) should address if EID moves forward on this project.  Some key recommendations include:

• A detailed description, with modeling, of current and future operations under the Proposed Project.
• Disclose and analyze actual and updated estimates of future demand in EID’s service area that would be served by the requested new points of diversion and rediversion.
• Disclose the impacts of the Proposed Project and evaluate mitigations of those impacts. Among the impacts are to Folsom Reservoir, Lower American River, cumulative impacts on the Sacramento River and the Sacramento – San Joaquin Bay Delta, Impacts to lake levels at Silver Lake and Caples Lake. Impacts to whitewater boating, aquatic resources, increased wildfire risks.
• Describe planned or foreseeable future water transfers under the Proposed Project and whether, how and to what degree the requested changes in permit conditions will assist and incentivize transfers of water.

The South Fork of the American River downstream of Chili Bar Reservoir is one of the premier and most used year-around whitewater recreation waterways in the entire United States. It draws rafters and kayakers from around the United States and the world. Such visitation provides a major source of income to El Dorado County businesses. Boating opportunities further upstream, on the South Fork American between Slab Creek Reservoir and Chili Bar Reservoir, are largely dependent on “spill” flows, which could be less frequent and lower in volume under the proposed new diversions.

CSPA is particularly concerned about how the proposed new points of diversion could allow a “county of origin” water right to enable increased water transfers. County of origin filings, such as the one under which Permit 21112 was issued, were established in 1927 to protect mountain and foothill watersheds from losing their water supply to wealthier and at the time more developed urban and agricultural users in the Central Valley and on the coast. Water transfers that the changes to Permit 21112 could enable would likely involve selling water to the very entities from which the county of origin laws originally sought protection. County of origin laws were set up to meet the actual development needs of upcountry counties, not to enable upcountry counties to cash in by diverting more water from the state’s rivers.

[1] Permit 21112 allows EID to divert up to 17,000 acre-feet per year (AFY) from the South Fork American watershed. Under the Permit, EID stores water in three storage reservoirs high in the watershed: Lake Aloha, Caples Lake, and Silver Lake. At present, the sole point of direct diversion and rediversion in the South Fork American watershed downstream of these storage reservoirs is Folsom Reservoir.

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.

By Cindy Charles

CSPA, as a leading member of a coalition of environmental and fishing organizations, sent a joint letter to Governor Newsom on May 11, 2020 urging his Administration to prioritize action on an urgent threat to California’s rivers, streams, and aquatic life.  The increasing avalanche of efforts by the Federal Energy Regulatory Commission (FERC) to waive Section 401 water quality certifications under the federal Clean Water Act (CWA) for FERC-licensed hydroelectric projects will lead to long term damage of our rivers and fisheries.

Section 401 of the Clean Water Act gives states a once-in-a-generation chance to place conditions on hydropower projects that aren’t owned by the federal government.  Under CWA Section 401, a federal agency may not issue a permit or license to conduct any activity that may result in a discharge into waters of a state unless the state issues a Section 401 water quality certification.  The state determines if the discharge will comply with the state’s approved water quality plans and laws.  The certification can include specific conditions related to water quality requirements that automatically become conditions in the federal license or permit.

FERC licenses run 30 to 50 years.  Many FERC licenses now in effect for hydroelectric dams in California were granted prior to the adoption of the Clean Water Act in 1972.  Today, when there are multiple new FERC licenses pending in California, agencies of the federal government are attacking California’s ability to issue or deny Section 401 water quality certifications.  If these federal efforts are successful, California will be excluded from ensuring that dams with wide-reaching impacts on rivers meet state water quality standards for still another 30 to 50 years.

A January 2019 D.C. Circuit Court decision (Hoopa Valley Tribe v. FERC) found that California’s State Water Board and the Oregon Department of Environmental Quality had waived their right to issue Section 401 certifications for the Klamath River Project.  The Court found that a written agreement to delay certification between the project operator and the states of California and Oregon, in order to complete settlement, violated the Clean Water Act’s requirement to complete certification in one year.  The Court found that the practice of the Klamath applicant of withdrawing and resubmitting its applications prior to each one-year deadline in order to avoid the states’ deadline to act, in the context of an agreement to have an “indefinite” delay,  prevented FERC from exercising its authority to issue hydropower licenses.  Since that time, FERC has applied an overly broad reading of this court decision and imposed a narrow interpretation of the CWA’s one-year deadline in a raft of relicensing proceedings, none of which had an agreement like that for the Klamath Project.

FERC has declared waiver of certification for Nevada Irrigation District’s Yuba-Bear Project on the Middle Yuba, South Yuba and Bear Rivers, Placer County Water Authority’s Middle Fork American River Project, PG&E’s Kilarc-Cow Creek Project, and six projects belonging to Southern California Edison on Big Creek.

Meanwhile, the Environmental Protection Agency under the Trump administration’s leadership has almost completed a rulemaking that would eliminate many Clean Water Act protections.  If implemented, the new rule would weaken the scope of certification, allow federal agencies to overrule the states, and allow federal agencies to create and enforce process requirements and deadlines that will hamstring states in completing their work.  (See previous post: http://calsport.org/news/hydropower-reform-coalition-opposes-another-trump-administration-attack-on-the-clean-water-act/)

The May 11 letter to the Governor urges his Administration to: (1) oppose federal regulatory changes that would remove or limit Section 401 water quality certifications from hydroelectric dam licensing or relicensing, (2) challenge pending and current waivers, and (3) urge state legislative action to defend the Clean Water Act and prevent future waivers of California’s authority to issue Section 401 water quality certifications.

Now, more than ever, California needs to defend and enforce its water quality standards.

For the complete letter go here.

Upper Merced River: Water Flowing to Merced ID to Be Sold?

By Cindy Charles

In March, Merced Irrigation District (Merced ID) filed a petition with the CA State Water Board (Board) for a temporary change to transfer up to 45,000 acre-feet of water to out-of-district water agencies[1].  Merced ID plans to sell its water even though the San Joaquin Index shows us in a Critically Dry Year for 2020.  CSPA filed protest comments with the Board against approval of the sale.  CSPA argues that this water sale will not best serve the public interest, is contrary to law and will have adverse environmental impacts. Merced Irrigation District seeks to sell water in the Critically Dry 2020 water year to make up for budget shortfalls.  As revenues from the sales of electricity continue to fall, revenues from irrigation water sales are inadequate to cover costs, including an ever-increasing pension liability.

The Board of Directors of the Merced Irrigation District was well aware of the likelihood of very low inflows to its reservoirs, as documented in Board Meeting Minutes from several meetings in early 2020.   In addition, Merced ID’s approved fiscal 2021 budget states that Lake McClure is anticipated to be at minimum pool level at the conclusion of the 2020 irrigation season.

By petitioning for a water transfer to out-of-district buyers, Merced ID is gambling that next year’s precipitation will backfill storage in Lake McClure. The proposed transfer will deplete carryover storage to the greatest allowed degree.  We already have seen what happens to Merced ID in this circumstance.

In 2012-2014, Merced gambled that precipitation in a following year would backstop depletion of its stored water.  Following decisions on how much water to deplete from storage in 2012 and 2013, Merced ID was left with almost no water to deliver in 2014; Merced ID applied for a variance to its instream flow requirements and carryover storage minimum in Lake McClure, and had to rescue the remaining O. mykiss (rainbow trout/steelhead) in the lower Merced River as water temperatures reached lethal conditions there.

In addition to its water storage challenges, Merced Irrigation District overlies a critically over drafted groundwater basin.  In a 2017 letter to the State Water Board opposing the update of the Bay-Delta Water Quality Control Plan, Merced ID argued that increasing flows in the lower Merced River would worsen the conditions of the groundwater basin.  The proposed transfer will take water out of a critically over drafted groundwater basin in a Critically Dry year—another risky decision.

If water year 2021 is a Dry or Critically year, Merced ID will likely not have sufficient water to meet its instream flow needs or to maintain water temperatures in Lake McClure sufficient to keep fish in the lower Merced River in good condition downstream of Crocker-Huffman Dam. We’ll likely see another emergency fish rescue then.

Merced ID has got to stop relying on out of district water sales to balance its finances.  The reliance on regulatory variances and waivers during dry year sequences as an accepted business practice is contrary to the public interest and is detrimental to the environment.

For the full comment letter click here http://calsport.org/news/wp-content/uploads/CSPA-Protest-Merced-ID-Transfer-Final-043020.pdf

[1] MID proposes to transfer the water from July 2020 through September 2020 to the following agencies: Santa Clara Valley Water District, Belridge Water Storage District, Berrenda Mesa Water District, Dudley Ridge Water District, Lost Hills Water District, and Wheeler Ridge-Maricopa Water Storage District.