California State Board sets aside NID’s Water Quality Certification

On May 7th, the State Water Resources Control Board voted to set aside water quality certifications for several hydroelectric projects, including a project on the Yuba and Bear rivers. The Board’s significant action is a direct response to the USEPA’s 2023 Rule, a positive revision of the Clean Water Act, Section 401 Water Quality Certification Improvement Rule, that took effect in November 2023. 

By setting aside the water quality certifications, the Board essentially rescinded the certifications (also known as “401s”) for the Nevada Irrigation District (NID) who owns and has a license to operate the Yuba Bear Hydroelectric Project; and also the Merced, Modesto, and Turlock irrigation districts for their hydroelectric projects on the Tuolumne and Merced rivers and Turlock Lake.    

Within hours, and after reading the proverbial writing on the wall, Merced Irrigation District filed a letter requesting a 401 certification.  After five years of legal wrangling, conservationists and angling groups await other water agencies to do the same.  

What is a “401”? 

Section 401 of the federal Clean Water Act empowers states to certify that hydro projects that receive a FERC license adhere to state water quality standards. Through these certifications, states require dam owners and operators to maintain streamflows and water temperatures necessary for the well-being of fish and aquatic life, as well as to protect activities like fishing and boating.   

NID’s Yuba Bear project was previously certified by the State Board but had been completed before the new 2023 rule and USEPA’s new interpretation that a 401 is predicated on a current pending request for certification from the dam owner.  

FERC completed an environmental review of the license in 2014, allowing NID to move to the last step in the federal proceeding. In 2019, the State Water Resources Control Board denied NID’s request for certification because NID had not yet initiated the legally required environmental review process (CEQA) needed for the certification. 

Some dam licensees in California, NID included, have sidestepped their obligations under the Clean Water Act, challenging the state’s authority and entangling water quality certifications in lengthy, time consuming, and costly legal battles.  In NID’s case, 6 years have passed since the agency first asked FERC to waive the State Board’s certification authority.  

NID’s license for the Yuba Bear Hydroelectric Project 

NID owns and operates the Yuba Bear Hydroelectric Project. Most of the dams and infrastructure that comprise this project are concentrated in the upper reaches of the Middle Yuba, Jackson Creek, Canyon Creek, South Yuba, and the Bear River (outside the Yuba watershed). This system of dams and conduits, along with other water infrastructure owned by PG&E, helps deliver and direct water from the Middle Yuba River over to Canyon Creek and then to the South Yuba.  Much of this water is then delivered out of the Yuba River watershed into the Bear River, although some of it is diverted back from the Bear River watershed into Deer Creek, part of the Yuba watershed. This process allows NID’s hydroelectric project to utilize water from the Yuba rivers and tributaries for Nevada County and to export a large amount of that water to meet demands on the Bear River. 

Outdated License Terms 

FERC issued the first and only license for the Yuba Bear Project in 1963.  FERC licenses are good for 50 years and place legally binding conditions on how dam owners will operate their system.  Unfortunately, these conditions were created before our modern environmental laws were in place and before our understanding of how dam infrastructure and operations could impact fish, recreation, and the health of the watershed overall.  SYRCL joined with our conservation allies and the Foothills Water Network to intervene in the relicensing process that started in 2007. 

Five years later, in December of 2012, after years of collaborative meetings and negotiations, NID submitted its Final Application to FERC for a new license. In SYRCL’s comments on FERC’s Final Environmental Impact Statement, we recognized that the new license has improvements for the Yuba and Bear rivers, including increased minimum flows for fish and aquatic health, more river flows that mimic the natural river hydrograph with less abrupt drops after a dam stops spilling, and a variety of additional monitoring activities and recreational enhancements. 

Despite this, 60 years later, NID is still operating under the same 1963 license with conditions and terms that fall short of safeguarding our fish and watershed health.   

But now it appears that change could be on the horizon. 

On May 8th, the SWRCB filed their approved order setting aside water quality certifications with FERC.

SYRCL and our conservation partners are urging FERC to mandate and compel NID to request water quality certification for the Yuba Bear license within 30 days. 

Since 2007, SYRCL has worked in several collaborative relicensing proceedings in the Yuba and Bear watersheds.  Learn more: Dams and Hydropower • SYRCL (yubariver.org)