Court sides with environmentalists over water quality

·2 min read

Aug. 6—On Thursday, the 9th Circuit Court of Appeals overruled the Federal Energy Regulatory Commission accusations that the California Water Resources Control Board waived its authority to ensure that hydroelectric projects uphold state water standards. This motion establishes clean water protection for the Yuba, Bear, and Merced River Watersheds for the next 40 years.

In a summary opinion, Judge Michelle Freidland said that Section 401 of the Clean Water Act requires states to provide water quality certification before an agency can be licensed to build, operate or construct facilities which may cause discharge in navigable waters.

Three cases for certification from the Nevada Irrigation District, Yuba Water Agency, and Merced Irrigation District were submitted and withdrawn before the established deadline. According to the summary, the federal commission found this to be a "coordinated scheme" to delay certification. Officials claim that the project applicants worked together with the state control board to withdraw the applications and reset the state's one-year review period when assessing certification.

The court disagreed with the commission's stance. According to a press release, the panel found that "a state's mere acceptance of a withdrawal-and-resubmission is not enough to show that the state engaged in a coordinated scheme to avoid its statutory deadline for action."

Based on records submitted by the project applicants, the court asserts that the water quality certification requests were withdrawn after it was found that the applicants did not comply with the state's California Environmental Quality Act.

The court also disagreed with the commission's belief that the reasoning behind the withdrawals was invalid.

"Federal licenses for hydroelectric projects can last up to 50 years, and the default term is 40 years. ... Accordingly, if a state waives its authority to impose conditions on a hydroelectric project's federal license through Section 401's certification procedure, that project may be noncompliant with prevailing state water quality standards for decades," Freidland wrote.

Environmental litigants approved of the court's decision to protect the state's right to impose conditions on hydroelectric projects and allow applicants to withdraw and re-submit requests for water quality certification.

"Since the Hoopa Valley Tribe ruling in 2019, some hydropower operators have been looking for ways to skate from the Clean Water Act," said Chris Shutes, Federal Energy Regulatory Commission projects director for the California Sportfishing Protection Alliance. "Today's ruling restores process discipline and affirms the Act's primary role to protect water quality."