Marking the culmination of a multiyear struggle where Pacific Gas and Electric (PG&E) had sought to evade regulation of hydropower projects under Section 401 of the Clean Water Act, the California Sportfishing Protection Alliance (CSPA) shared that on September 5, 2023, the Federal Energy Regulatory Commission (FERC) issued an Order that reaffirms the California State Water Board’s authority to enforce a “water quality certification” for new hydropower licenses granted to projects such as the Upper Drum-Spaulding, Lower Drum, and Deer Creek hydroelectric ventures.
Section 401 of the federal Clean Water Act empowers states to certify that facilities receiving federal licenses or permits adhere to state water quality standards. Through these certifications, states require dam owners 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.
FERC’s Order rejects PG&E’s central argument that the State Water Board was responsible for FERC’s delay in issuing new licenses. In fact, PG&E voluntarily withdrew and re-submitted its certification requests annually from 2013 through 2017. Notably, the State Water Board consistently acted within one year of request or certification, as PG&E withdrew its requests. Starting in 2018, the State Water Board denied certification within one year of PG&E’s requests.
While the new licenses for the three projects are still pending at FERC for reasons unrelated to certification, this decision represents a significant step forward in environmental protection.
Back in April 2021, the Foothills Water Network (of which SYRCL is a member) coalition submitted comments to FERC opposing PG&E’s Petition for Waiver. Speaking on behalf of the coalition, CSPA argued:
“The record shows that the State Water Board has diligently acted in processing PG&E’s application and issuing a certification within the one-year timeframe. Contrary to PG&E’s assertions, any delays in the water quality certification proceeding are due to PG&E’s sole decision to withdraw applications for certification in preference to denial [of the application]”.
This ruling means that the Commission rightly found that the State Water Resources Control Board did not waive its right to issue water quality certification under the Clean Water Act.
This Order follows the precedent set by the US Court of Appeals for the Ninth Circuit, which reversed FERC’s waiver of water quality certifications for the Yuba River, Yuba-Bear, Merced River, and Merced Falls hydroelectric projects and marks a reversal of previous FERC positions on waiver of Section 401 for hydroelectric projects.
This victory underscores the vital importance of collective efforts in preserving our natural resources and protecting the environment. We are immensely grateful for the unwavering dedication of organizations like CSPA and the broader environmental community who have championed this cause. As we celebrate this success, let’s continue our commitment to ensuring a cleaner and healthier environment for all.
Together, we can make a difference!
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