SYRCL Defends the Clean Water Act Section 401

The Trump administration quietly rolled back the Clean Water Act to make it easier for hydropower facilities to skirt environmental accountability through their relicensing process. And now, states like California won’t even be allowed to protect their own watersheds.

The Yuba River Watershed is the first in line to be sacrificed – and we can’t let this happen without speaking up.

Without urgent action, FERC could issue hydropower licenses without critical state environmental protections for more than a dozen California hydropower projects for the next 40 to 50 years – including most of the hydropower operations in the Yuba and Bear River watersheds.

How can I help?

Take Action today by signing this letter to FERC asking them to protect California, the Clean Water Act and our rivers by ordering Nevada Irrigation District and Yuba Water Agency to obey state environmental regulations. Hydroelectric projects should not come at the expense of state and tribal communities’ ability to protect their water sources, provide clean water, and limit risks of contaminated waterways.

How is this happening? It starts with the “relicensing” of hydropower dams.

The Federal Energy Regulatory Commission (FERC) issues 30-to-50-year licenses to operators of hydropower projects. As each license expires, FERC requires a license holder (“licensee”) to start a multi-year process to relicense its project, setting new rules and regulations for the next decades-long license period. This gives us a rare window of opportunity during which to advocate for mandated changes that will benefit our rivers and watersheds. That is why the Hydropower Reform Coalition (HRC), Foothills Water Network (FWN) and member organizations, like SYRCL, are actively involved in relicensing efforts all over the state to advocate for such environmental measures.

How does a poorly licensed dam harm a river?

Many hydropower dams were built during an era when little thought, if any, was given to the impact on fish, habitat, recreation and our communities. Hydropower dam operations severely impact the health of rivers. Hydropower plants often divert water around entire sections of river, leaving them dry, or worse, rapidly alternating between unnatural drought and flood-like conditions. These dramatic alterations and fluctuations in water levels endanger a number of species and cause significant loss of aquatic biodiversity. Hydropower dams also damage fisheries, diminish recreational opportunities, flood forests, and decimate local – mostly rural – economies that depend on those resources. Finally, hydropower dams are also a significant source of water pollution, altering the temperature and chemical makeup of water that is impounded behind and released from dams, harming the biological integrity of river ecosystems.

For the last 50 years two hydropower projects have diverted 80% of the Yuba watershed’s water out of the river in order to generate electricity. Without its water, the health of the river is severely degraded. SYRCL is advocating for specific improvements such as enhanced stream flows, more natural flow fluctuations, passage of wood and sediment for habitat, and recreational enhancements. These would all help improve the overall health of the Yuba and Bear River watersheds.

So what’s the problem?

The Trump Administration is rolling back Clean Water Act (CWA) protections for rivers affected by hydropower dams by abusing a regulatory loophole, while also re-writing key CWA regulations. These changes purposely erode states’ authority to ensure compliance with their own environmental standards. Unfortunately this means that the State of California loses its ability to protect some of our most iconic rivers.

Before FERC can issue a new hydropower license, the CWA requires that a state certify that the project conforms to its own water quality standards. Section 401 of the CWA gives a state, like California, one year to exercise its authority to certify or deny that a new FERC license will comply with state water quality standards.

California’s State Water Resources Control Board (Water Board) is the designated agency to issue “Section 401 certifications” for hydropower projects. These certifications are usually one of the last stages of the multi-year relicensing process, and one of the most critical and effective tools for protecting the Yuba River watershed in the face of federal rollbacks.

Recognizing that complex hydropower projects often take longer than a year to adequately review, FERC has allowed licensees to withdraw and resubmit their applications for certification within the one-year timeframe. This prevented states from denying certification for lack of information, or waiving the state’s right to issue a certification.

However in January 2019, the D.C. Circuit issued a ruling in Hoopa Valley Tribe v. FERC (Hoopa Valley Tribe). This case declared that, for that particular hydropower project, states must obey the one-year timeframe to issue a water quality certification, and that use of the FERC “withdraw and resubmit” procedure is not permissible. Failure to meet the one-year timeframe results in waiver of a state’s right to issue a water quality certification under section 401 of the CWA. Shortly after the ruling, President Trump issued an Executive Order requiring the Environmental Protection Agency to re-write CWA Section 401 regulations. The regulations codified a very broad interpretation of the Hoopa Valley Tribe ruling, severely undermining states’ authority to enforce their own environmental laws. Unfortunately, those new regulations were finalized June 1, 2020.

California also responded to this issue by passing emergency legislation in June to help prevent future 401 waivers, but unfortunately it does not apply to previously issued waivers such as in the Yuba River watershed.

How will this impact the Yuba and Bear River watersheds?

Hoopa Valley Tribe ignited a groundswell of requests from hydropower operators to FERC for ‘waiver’ of CWA Section 401 certifications. Unfortunately, FERC interpreted the Hoopa Valley Tribe ruling broadly and has undermined the Clean Water Act, and in California, the California Environmental Quality Act as well. In the midst of the COVID-19 emergency, FERC granted waivers for the Nevada Irrigation District’s Yuba-Bear Hydropower Project and Yuba Water Agency’s Yuba River Development Project, among the oldest and most complex hydropower projects in the state. This means they are exempt from California oversight. This has prevented California and other relicensing stakeholders from bringing the projects up to modern standards to protect the environment.

In the past, California provided critical oversight of hydroelectric projects. But under the Trump administration, FERC is placing fewer requirements in hydropower project licenses, and applying Hoopa Valley Tribe so broadly; it subverts California’s oversight authority.

What is being done?

SYRCL, HRC, FWN, California Coastkeeper Alliance, and other partner organizations have aggressively protested erosion of CWA Section 401 by formally objecting to licensee’s petitions to FERC to waive required state water quality certification, advocating for policy reform and appealing FERC’s finding of waiver on both hydroelectric projects in the Yuba River watershed. Coalitions of blue and red states as well as conservation organizations will litigate at the national level to oppose the new finalized EPA regulations for CWA Section 401.

Efforts to oppose the attacks on the Clean Water Act, at both the local and national level, are important to defend clean water protections, and protect our state’s right to protect our environmental resources.

We need your help. In light of COVID-19 and state economic setbacks, the health of our waterways and the protection of our bedrock environmental laws are more important now than ever before.

Section 401 of the Clean Water Act safeguards watershed health providing unique regulatory controls on dams and hydropower operations, especially in the Yuba River watershed. It should not be sacrificed for the convenience of hydropower projects.

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