From the State Water Resources Control Board:
State Water Resources Control Board staff has received requests for additional information regarding the Proposed Order Reconsidering Water Quality Certifications for which a Notice of Opportunity for Public Comments and Board Consideration was issued on March 11, 2024.
Staff would like to remind all parties that a ban on ex parte communications is in effect, as discussed on page 3 of the Notice.
For certain types of proceedings, including Board consideration of the Proposed Order, ex parte rules prohibit communications with the State Water Board in the absence of other parties and without notice and opportunity for all parties to participate in the communication. The ex parte communication rules ensure fairness and transparency in Board decision-making.
Accordingly, communications with the Board must be made in accordance with the comment process described in the Notice.
Scope of Proceeding
The above-described ex parte communications prohibition applies to the State Water Board’s consideration of the Proposed Order. As stated in the Notice and Proposed Order, 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 Section 401 certification in the absence of a currently pending request for certification. In light of USEPA’s new interpretation, the Proposed Order would set aside the three water quality certifications (certifications) (listed below) and dismiss the pending petitions for reconsideration of these certifications. If these certifications are set aside by the Proposed Order, there would no longer be any decision or order of the State Water Board in effect to be reconsidered. Therefore, to avoid the unnecessary expenditure of resources, the Proposed Order also dismisses the petitions for reconsideration of these certifications. While the State Water Board anticipates receiving requests for certification for the licensing of these projects in the future, the Board’s future actions are neither bound nor determined by the set aside certifications.
The three certifications that would be set aside include:
- Merced Irrigation District’s Merced River Hydroelectric Project and Merced Falls Hydroelectric Project
- Nevada Irrigation District’s Yuba-Bear Hydroelectric Project
- Turlock Irrigation District’s and Modesto Irrigation District’s Don Pedro Hydroelectric Project and La Grange Hydroelectric Project
