From the State Water Resources Control Board:
On March 11, 2024, the State Water Resources Control Board (State Water Board) issued a Notice of Opportunity for Public Comments and Board Consideration of a Proposed Order Reconsidering Water Quality Certifications (Notice). The State Water Board will accept written comments on a proposed order setting aside the water quality certifications (certifications) for hydropower project licenses for: (1) Merced Irrigation District’s Merced River Hydroelectric Project and Merced Falls Hydroelectric Project (Federal Energy Regulatory Commission [FERC] Project Nos. 2179 and 2467), issued on
July 31, 2020; (2) Nevada Irrigation District’s Yuba-Bear Hydroelectric Project (FERC Project No. 2266), issued on August 14, 2020; and (3) Turlock Irrigation District’s and Modesto Irrigation District’s Don Pedro Hydroelectric Project and La Grange Hydroelectric Project (FERC Project Nos. 2299 and 14581), issued on January 15, 2021. The proposed order would set aside these three certifications and dismiss the pending petitions for reconsideration of these certifications.
The Notice includes information on how to access the proposed order. Any person wishing to file a written comment with the State Water Board must do so by 12:00 noon on Tuesday, April 9, 2024, as directed in the Notice.
BACKGROUND
On September 27, 2023, the United States Environmental Protection Agency (USEPA) promulgated the Clean Water Act Section 401 Water Quality Certification Improvement Rule (2023 Rule). In the preamble accompanying the 2023 Rule, USEPA provided, for the first time, an interpretation of section 401 of the federal Clean Water Act (Section 401) that precludes certifying authorities such as the State Water Board from issuing a certification in the absence of a currently pending request for certification. In light of USEPA’s new interpretation, the proposed order sets aside the three certifications listed above that were issued by the State Water Board’s Executive Director without a pending request for certification, where the State Water Board had previously received a request for certification that had either been denied or withdrawn, and the project proponent(s) was still actively pursuing a federal hydropower license. Although the State Water Board believes its issuance of these certifications was proper and its interpretation of Section 401 remains reasonable, the State Water Board defers to USEPA’s new interpretation. If these certifications are set aside by the proposed order, there would no longer be any action of the State Water Board to be reconsidered. Therefore, to avoid the unnecessary expenditure of resources, the proposed order also dismisses the petitions for reconsideration of these certifications.
As discussed in the Notice, the State Water Board will consider adoption of the proposed order at the State Water Board meeting on Tuesday, May 7, 2024. Please see the Notice for additional information regarding this meeting and receiving future notices of any changes to information provided in the Notice.
If you have questions regarding this email, please contact Adam Cohen by email at Adam.Cohen@waterboards.ca.gov, or by phone at 916-322-9258.
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