Feds undermine Clean Water Act protections – American River project center stage of national precedent
From the South Yuba River Citizens League, Foothills Water Network, and the Hydropower Reform Coalition:
The Federal Energy Regulatory Commission (“FERC”) recently ruled that California does not need to provide water quality certification for the Middle Fork American Hydroelectric Project (Middle Fork Project) in Placer and El Dorado counties, operated by Placer County Water Agency (PCWA). This order effectively waives California’s authority to ensure water quality and environmental protections for hydropower operations. Conservationists decried the loss of protection for local rivers and claim the precedent will limit the authority of states to implement and enforce the Clean Water Act nationwide. This is the latest event in an ongoing saga of regulatory rollbacks under the Trump Administration, specifically targeting environmental protections.
“The ruling was a disappointing setback for the Network and members of the California Hydropower Reform Coalition (CHRC), who were seeking to uphold water quality protections in the American River watershed and preserve states’ authority to issue what is known as a ‘401 certification.’” stated Traci Sheehan, coordinator for Foothills Water Network (FWN).
Earlier this year in April, FERC declared that the State Water Resources Control Board (State Water Board) had waived their right to issue 401 water quality certification for the Middle Fork Project. Actions by FERC were based on the ruling Hoopa Valley Tribe v. FERC, which opened the door for hydropower operators to bypass state approval processes. At that time, FWN asked FERC to revisit their ruling based on the fact that the State Water Board had issued a 401 certification on the day before they issued their Order. But, FERC’s Order found that the State Water Board’s 401 certification, though issued the day before their original ruling, has no “legal significance.”
PCWA has been waiting for the State Water Board to issue a 401 certification since 2013. FERC concluded that the State Water Board’s extended delay in issuing the permit “constituted a failure or refusal to act,” effectively waiving their authority.
Chris Shutes, FERC Projects Director for the California Sportfishing Protection Alliance, observed: “The Middle Fork American relicensing had a negotiated outcome in which PCWA got everything it needed and more for its lucrative hydropower project. But PCWA couldn’t resist piling on the Hoopa Valley Tribe v. FERC court case to gain an unnecessary benefit for itself at the expense of the rules that protect water quality across the county.”
“This is a serious blow to cooperation in years-long hydropower relicensing,” said Ashley Overhouse, Policy Manager at the South Yuba River Citizens League.
“FERC’s broad and retroactive application of Hoopa Valley Tribe v. FERC sets a dangerous precedent for hydropower proceedings in the future. The Middle Fork Project will now continue to operate for another thirty to fifty years without Clean Water Act protections or oversight from California’s State Water Board.”
Combined with other local operators who have also sought waivers, conservationists fear that this poses a significant risk to environmental resources affected by hydropower operations in the Sierra foothills.
The Middle Fork American Project consists of five powerhouses, two storage reservoirs, and a series of diversions in the Middle Fork American and Rubicon River watersheds. FERC issued a 50-year license for the project in 1963. The license expired on March 1, 2013 and has been operating on a series of temporary annual licenses since then. The American River is an important source of drinking water for California’s capitol, Sacramento, and is part of the Sacramento River and San Francisco Bay watersheds.
A rash of requests from utilities and water agencies for a waiver of their water quality requirements 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 v. FERC decision to seek waiver of their 401s, including PCWA for the Middle Fork American. However, this is the only hydropower project in California to receive a waiver from FERC to date.
If this trend continues, FERC could potentially exempt licenses for over a dozen California hydropower projects from Clean Water Act protection for the next 30 to 50 years.
Click here to read FERC’s order.
Based in Nevada City, CA, the South Yuba River Citizens League (SYRCL, pronounced “circle”), is the leading voice for the protection and restoration of the Yuba River watershed. Founded in 1983 through a rural, grassroots campaign to defend the South Yuba River from proposed hydropower dams, SYRCL has developed into a vibrant community organization with more than 3,500 members and volunteers.
The Foothills Water Network represents a broad group of non-governmental organizations and water resource stakeholders in the Yuba River, Bear River, and American River watersheds. The overall goal of the Foothills Water Network is to provide a forum that increases the effectiveness of non-profit conservation organizations to achieve river and watershed restoration and protection benefits for the Yuba, Bear, and American rivers.
The Hydropower Reform Coalition is an association of over 160 national, regional, and local conservation and recreation organizations dedicated to protecting and restoring rivers affected by hydropower dams, ensuring public access to these lands and waters, and reforming the federal licensing process to ensure public participation and to improve the quality of the resulting decisions. The Coalition’s combined membership represents more than 1.5 million people across the country. Working together, the Coalition has protected or restored thousands of river miles, thousands of acres of watershed land, and countless opportunities for boating, fishing, and other recreation.
Attorney General Becerra Secures Settlement Against Westlands Water District for Unlawful Participation in Shasta Dam Project
From the California Attorney General Xavier Becerra:
California Attorney General Xavier Becerra today announced a proposed settlement against Westlands Water District (Westlands) resolving allegations that Westlands violated California law by illegally participating in a project to raise the height of the Shasta Dam. The proposed settlement would bar Westlands from any attempt to move forward with the project that would pose significant adverse effects on the free-flowing condition of the McCloud River and on its wild trout fishery. The river and fishery retain special statutory protections under the California Wild and Scenic Rivers Act. The Act prohibits any agency of the State of California, such as Westlands, from assisting or cooperating with actions to raise the Shasta Dam. The settlement, filed in the Shasta County Superior Court, resolves Attorney General Becerra’s lawsuit filed on May 13, 2019, alleging that Westlands’ participation in the project was in violation of the Act. In addition to the lawsuit filed by Attorney General Becerra, a coalition represented by Earthjustice filed a separate suit, which is also resolved as part of the settlement today. The coalition includes Friends of the River, Pacific Coast Federation of Fishermen’s Associations, Institute for Fisheries Resources, Natural Resources Defense Council, Defenders of Wildlife, Sierra Club, and Golden State Salmon Association.
“This unlawful project would have hurt the McCloud River, and the communities and species that depend on it,” said Attorney General Becerra. “Westlands’ attempt to engage in this process violated the California Wild and Scenic Rivers Act. In spite of this, the District attempted to force its way forward. We applaud the court for blocking this project and are thankful that this matter has come to a close. You might have friends in Washington D.C., but that doesn’t place you above the law.”
“Westlands illegally tried to get around California law, and the courts said no,” said John McManus of the Golden State Salmon Association. “This agreement is a win for all salmon fishermen because the Sacramento River is the biggest salmon producer in the state and would be badly damaged by the raising of the dam. It’s also a win for all Californians who care about clean water and fish.”
The settlement resolves allegations that Westlands unlawfully assumed lead agency status for the $1.3 billion project and allocated over $1 million for the preparation of an Environmental Impact Report under the California Environmental Quality Act (CEQA) as part of its planning to become a 50 percent cost-sharing partner with the federal government. Under the Wild and Scenic Rivers Act, Westlands is prohibited from planning, funding, or assisting with any project that could adversely affect the McCloud River’s flow or its fishery. Federal studies of the proposal concluded that raising the dam would increase the already-flooded portion of the lower McCloud River by 39 percent.
As a result of the lawsuits, on July 29, 2019, the court granted a preliminary injunction that halted Westlands’ continued participation in the project and led to Westlands withdrawing its CEQA notice.
Today’s settlement would bar the district from undertaking any action that would constitute planning or construction to raise the Shasta Dam including:
- Initiating preparation of an environmental impact report or other environmental review document as part of the CEQA process;
- Entering into any agreement to fund, directly or indirectly, activities intended to raise the dam;
- Entering into any agreement that would assist any agency of the federal, state, or local government in planning or construction to raise the dam; or
- Acquiring any property to facilitate the raising of the dam.
A copy of the settlement can be found here.
Orange County water and sanitation districts break ground on project that recycles 100% of available wastewater flows into drinking water for 1 million people
Today, the Orange County Water District (OCWD) and Orange County Sanitation District (OCSD) celebrated the Final Expansion of the Groundwater Replenishment System (GWRS) with a groundbreaking ceremony attended by elected officials, project stakeholders and industry professionals.
The Final Expansion of the GWRS is the third and final phase of the project. The GWRS first began operating in 2008 producing 70 million gallons of water a day (MGD) and in 2015, it underwent a 30-MGD expansion. When the Final Expansion is completed in 2023, the plant will produce 130 MGD.
“Today marks an important milestone in Orange County’s water future,” said OCWD President Vicente Sarmiento. This is what we work for day in and day out—to provide a high-quality, reliable water supply to 2.5 million people in our service area. Total production will be enough water for 1 million people when the expansion is completed. The GWRS is vital to combatting climate change and sustaining Orange County’s water supplies and its thriving economy.”
The GWRS, the world’s largest water reuse project of its kind, is the result of decades of collaboration between OCWD and OCSD to overcome the stigma associated with these types of projects and bring water reliability to the region.
OCWD and OCSD see wastewater as a resource. Instead of discharging treated wastewater to the Pacific Ocean, OCSD treats it and produces water clean enough to undergo purification at the GWRS. This water is then purified at the GWRS using a three-step advanced process consisting of microfiltration, reverse osmosis and ultraviolet light with hydrogen peroxide. The result is high quality water that meets and exceeds state and federal drinking water standards. This purified water is then injected into a seawater barrier and pumped to recharge basins where it naturally percolates into the Orange County Groundwater Basin, managed by OCWD, and supplements Orange County’s drinking water supplies. Currently, GWRS water accounts for one-third of the water that is put into the basin.
“We are honored to partner with the Orange County Water District in ensuring strict source control of the wastewater and working to increase the amount of water sent to the GWRS,” stated OCSD Board Chairman, David J. Shawver. “We have made significant investments and are dedicated to the prudent use of public funds for this and all future projects benefiting our community.”
The Final Expansion requires a total treated wastewater flow from OCSD of approximately 175 MGD in order to produce 130 MGD of advanced purified recycled water. “This project will allow the region to recycle 100% of OCSD’s reclaimable flows, which will be yet another first in the industry,” added Shawver. The GWRS is a financially responsible project that produces water at a lower cost than imported water. Funding for the Final Expansion includes $135 million from the Environmental Protection Agency’s Water Infrastructure Finance and Innovation Act (WIFIA) program and $1.1 million in grants from the U.S. Department of the Interior Bureau of Reclamation Title XVI Water Infrastructure Improvements for the Nation (WIIN) program.
“The Orange County Water District’s advanced system expansion will benefit the local community, the economy and the environment,” said United States Environmental Protection Agency (EPA) Pacific Southwest Regional Administrator Mike Stoker. “We are honored to help fund this project and reduce borrowing costs through our WIFIA loan program.”
Additionally, the Final Expansion received the highest ratings for all North Orange County projects submitted through the Integrated Regional Water Management (IRWM) program for Prop 1 grant funding managed by the California Department of Water Resources. The project is currently slated to receive $3.6 million in grants through the IRWM program. The remaining $186 million will be funded through the Clean Water State Revolving Fund (SRF) Loan program.
For more information about the GWRS and the Final Expansion, please visit https://www.ocwd.com/gwrs.
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About News Worth Noting: News Worth Noting is a collection of press releases, media statements, and other materials produced by federal, state, and local government agencies, water agencies, and academic institutions, as well as non-profit and advocacy organizations. News Worth Noting also includes relevant legislator statements and environmental policy and legal analyses that are publicly released by law firms. If your agency or organization has an item you would like included here, please email it to Maven.