What is Section 401 of the Clean Water Act?
Before FERC can issue a new hydropower license, the Clean Water Act (CWA) requires that the state where project is located certify that the project’s operations will conform to state water quality standards.
Section 401 of the CWA gives the state one year to exercise its authority to certify or deny that a new FERC license will comply with state water quality standards. However, FERC has not strictly enforced this one-year timeframe in the past. Recognizing that complex hydropower projects and processes often take longer than a year, FERC has allowed the licensees applying for water quality certifications to withdraw and resubmit their applications before the expiration of the one-year deadline. This prevented a situation where the states would have to deny certification for lack of information or supporting documentation, or else waive the state’s right to issue a certification.
The State Water Resources Control Board (Water Board) is the delegated agency to issue Section 401 certification for hydropower projects in California, and it is usually one of the last approvals issued in the multi-year relicensing process.
What is happening to Section 401, and how will that affect the Yuba and Bear River watersheds?
In January 2019, the D.C. Circuit issued a ruling that has undermined clean water protections essential to the success of relicensing, Hoopa Valley Tribe v. FERC (Hoopa Valley Tribe). Hoopa Valley Tribe declared that states must obey the strict one-year timeframe to issue a water quality certification, and that use of “withdraw and resubmit” is not a permissible way to extend this deadline for action. Failure to meet the one-year timeframe results in waiver of the right to issue clean water certification under section 401 of the CWA.
The groundswell of requests for a waiver of Section 401 citing the Hoopa Valley Tribe case began in February 2019 with Nevada Irrigation District for the Yuba-Bear Hydroelectric Project. Since then, at least five other licensees have used the Hoopa Valley Tribe decision to seek waiver of their 401s, including Yuba Water Agency, Pacific Gas & Electric Company and Southern California Edison.
FERC interpreted the Hoopa Valley Tribe ruling broadly and issued a CWA 401 waiver to Placer County Water Agency for the Middle Fork American Project in April. If this trend continues, FERC could potentially exempt licenses for over a dozen California hydropower projects from CWA protection for the next 30 to 50 years.
What happens now?
Trout Unlimited and California Trout have filed an appeal of Hoopa Valley Tribe to the U.S. Supreme Court. CHRC and specific member organizations have also aggressively advocated protecting CWA Section 401 by objecting to petitions to FERC for orders seeking waiver of certifications, or by opposing requests for “clarification” of the status of certification, on the following projects:
- Yuba River Development Project
- Middle Fork American Project
- Kilarc-Cow Project
- Big Creek Projects
- Yuba-Bear Project
- Merced River and Merced Falls Projects
Unfortunately, regardless of the final Hoopa Valley Tribe decision, President Trump issued an Executive Order in April 2019 ordering the Environmental Protection Agency to review Section 401, issue new guidance and initiate new rulemaking by August 2019. California’s Attorney General led a coalition of 14 states rebuking EPA’s new 401 guidance in a comment letter filed July 25, 2019. The proposed new 401 rule was published August 9, 2019. Comments were due October 21st and the rule will become final in May 2020. These events are part of a larger, national attack on the Clean Water Act. SYRCL filed formal comments opposing the rule as a member of Hydropower Reform Coalition and as Yuba River Waterkeeper with Waterkeeper Alliance.
Efforts to oppose the attacks on the Clean Water Act, at both the local and national level, are important to defend clean water protections. Furthermore, CWA Section 401 is an important safeguard for watersheds and one of the few regulatory controls on dams and hydropower operations. It should not be sacrificed to political warfare.