Hydropower Reform Coalition

Coalition Members Oppose Waiver of Clean Water Act Cert for Yuba River Development Project

Colleen McNally-Murphy — Mon, 20 Apr 2020 19:54:49 +0000

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Clean Water Act

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Hydropower Reform Coalition members California Sportfishing Protection Alliance, South Yuba River Citizens League, Americna Rivers, American Whitewater, Friends of the River, California Outdoors, Trout Unlimited, and Northern California Council of Fly-Fishers, in partnership with allies in the Foothills Water Network, have filed a Response in Opposition to Yuba Water Agency’s Request for Waiver of water quality certification for the Yuba River Development Project. The Network filed its letter with the Federal Energy Regulatory Commission (FERC) on April 2, 2020. Waiver of certification would place a 40-to-50-year restriction on the state of California’s ability to regulate operation of this huge hydroelectric project on the Yuba River.

FERC is conducting a proceeding to relicense the Yuba River Development Project. The applicant to relicense the project is Yuba Water Agency (formerly and still referred to by FERC as Yuba County Water Agency, or YCWA). Section 401 of the federal Clean Water Act requires an applicant to obtain a certification by a state agency that operation of the project under a new FERC license will be consistent with the state’s standards for water quality and protection of “beneficial uses.” Section 401 allows the state to place conditions in the FERC license to assure this consistency and protection. In California, the State Water Resources Control Board (State Water Board) is responsible for issuing 401 certifications for hydroelectric projects.

The Clean Water Act imposes a one-year deadline for a state to issue a 401 certification. Failure to meet the deadline results in “waiver:” the state loses its chance to place conditions in the FERC license. The statute itself does not define when the one-year clock starts. In the past, FERC had a de facto policy of allowing applicants to withdraw applications for certification and resubmit them before the clock ran out. This avoided denial of certification by the state.

In January 2019, the U.S. Court of Appeals in Washington D.C. found in Hoopa Valley Tribe v. FERC that the State Water Board had waived its right to issue certification for the Klamath River Hydroelectric Project. The Court held that the State Water Board had made an illegal agreement with the owner of the Klamath project to delay certification to allow time for parties to complete a settlement of issues.

Since the ruling in Hoopa Valley Tribe v FERC, FERC has issued a series of orders expanding the application of the Court’s decision. FERC has found that when applicants withdrew and resubmitted applications for certification, this amounted to waiver, even without an explicit agreement between applicant and the certifying state agency. FERC has applied its new criteria retroactively, even for cases when states had already issued certifications.

YCWA’s Request for Waiver joined the parade of filings by hydropower operators that seek to avoid state oversight.[1] But YCWA has a problem. Issuance of a 401 certification requires analysis under the California Environmental Quality Act (CEQA). YCWA chose to be the Lead Agency for CEQA for the 401 certification of its project. That means it promised to produce a CEQA document, such as an Environmental Impact Report or an Environmental Assessment. But YCWA has not even started, let alone completed, a CEQA document to support the State Water Board’s decision on 401 certification.

The Foothills Water Network’s comments therefore conclude:

The record shows that the State Water Board has diligently acted in processing YCWA’s application. Contrary to YCWA’s assertions, the current delays in the 401 proceeding are due to YCWA’s failure to provide information necessary to fully evaluate the Project’s potential impacts on water quality over the term of any new license by preparing the environmental document required under state law.

The Commission should find that the California State Water Resources Control Board has not waived Clean Water Act § 401 Water Quality Certification for the relicensing of the Yuba River Development Project. On the contrary, the Commission should order YCWA to complete CEQA and submit a new application with a completed CEQA document forthwith, or, in the alternative, deny YCWA’s application for relicensing the Yuba River Development Project for lack of diligent prosecution.

[1] For a description of other such requests and CSPA’s earlier responses, see CSPA Defends Section 401 of the Clean Water Act at: http://calsport.org/news/wp-content/uploads/bsk-pdf-manager/2019/12/2019-08-Summer-Edition.pdf

California certifies Klamath dam removal meets water quality standards

Colleen McNally-Murphy — Thu, 09 Apr 2020 21:04:33 +0000

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On April 7, the long effort to restore the Klamath River and its once-prolific salmon and steelhead runs passed another major milestone when the California State Water Resources Control Board (SWRCB) issued its Clean Water Act Section 401 water quality certification for the removal of the Lower Klamath Project.

The Lower Klamath Project includes the Iron Gate, Copco I and Copco II, and JC Boyle dams. The SWRCB certification affirms that taking out the dams will not impair water quality in California waters. In fact, removing the dams will actually improve water quality for some 200 miles of river, from the dams to the mouth.

The 401 certification is a federally mandated, state-level permit needed for any change in operation of a federal infrastructure project. The Klamath River Renewal Corporation (KRRC)—the non-profit entity created to assume ownership and the operating license for the dams and to oversee their decommissioning—has already received the required 401 permit from the State of Oregon.

Fishing the lower Klamath River. Photo courtesy Craig Nielson/Shasta Trout

Before issuing the certification, the SWRCB undertook a California Environmental Quality Act (CEQA) analysis of the Klamath dam removal project. This analysis is required to identify potential environmental impacts as well as measures to avoid, mitigate, or offset those effects. The SWRCB acted as the lead agency for the CEQA review. It issued a Draft Environmental Impact Report (DEIR) in December 2018, held public hearings, reviewed thousands of public comments, and recirculated parts of their DEIR for additional scrutiny.

Concurrent with issuance of the 401 certification, the SWRCB also issued its Final Environmental Impact Report (FEIR). After considering the full range of project benefits and impacts, the FEIR found that dam removal is the environmentally superior alternative. Trout Unlimited provided formal comments (link below) to the SWRCB in support of removing the four dams on the Klamath during the CEQA analysis.

TU comments on DEIR for Lower Klamath Project and License Surrender_02-26-19 Download

The next step is for the Federal Energy Regulatory Commission (FERC) to approve the transfer of the operating license for the four Klamath dams from PacifiCorp to the KRRC, and evaluate the surrender and decommissioning plans for dam removal to take place in 2022.

Hydropower Reform Coalition members Trout Unlimited, California Trout, American Rivers, and American Whitewater will continue to work with the KRRC and other Klamath Basin stakeholders—tribes, agricultural interests, counties and communities—to support the shared commitment to the goals of completing the largest dam removal and river restoration effort yet accomplished and ensuring economic security for Basin communities and businesses. We will also continue our groundbreaking habitat and streamflow restoration work in the upper Klamath Basin to help ranchers and landowners prepare for the eventual return of salmon and steelhead.

Learn more about this project with this video describing the dam removal project: https://vimeo.com/345577187

https://www.tu.org/blog/california-certifies-klamath-dam-removal-meets-water-quality-standards/

HRC Opposes Weakening of Federal Environmental Review

Colleen McNally-Murphy — Thu, 26 Mar 2020 18:58:36 +0000

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The Hydropower Reform Coalition submitted comments on March 10, 2020 in opposition to proposed changes to the implementation of the National Environmental Policy Act (NEPA). The Coalition’s comments state that the proposed new NEPA rule would make analysis worse and would harm the environment.

Analysis under NEPA is required whenever there is an action by a federal agency that may have impacts on the environment, including the issuance of permits and licenses. The Trump administration’s Council on Environmental Quality issued the proposed new rule for NEPA in January 2020.

If put into practice, the proposed new NEPA rule would limit the alternatives to a proposed action that an Environmental Impact Statement (EIS) would have to analyze. In particular, alternatives that would achieve similar outcomes and have fewer environmental impacts would no longer require analysis if they would require actions by third parties.

The proposed new NEPA rule would also eliminate the requirement for an EIS to evaluate the “cumulative” effects of actions, and possibly even their indirect environmental effects. The most frequently cited analysis that this would eliminate from NEPA is the effect of an action in promoting climate change. But there are many more ways in which the proposed rule would limit analysis and thus allow federal actions and decisions to harm the environment.

The Coalition’s comments “use licensing proceedings before the Federal Energy Regulatory Commission (FERC or the Commission) to illustrate the negative impacts certain proposed rules would have on federal administrative proceedings.” For instance: suppose FERC were to limit its NEPA analyses in licensing hydroelectric projects to the requirements of the new NEPA rule. This would put FERC’s NEPA analysis in conflict with FERC’s Federal Power Act responsibilities to evaluate each “waterway” in issuing each project license (even when parts of the waterway are outside the area of one hydropower “project”). Under NEPA, this would be a “cumulative” effect, no longer required under the new rule. The Coalition’s comments use real world examples to describe how following the new NEPA rule would let utilities and FERC off the hook for evaluating the effects of power projects and licensing decisions.

The Coalition’s comments also point out that the new NEPA rule would present similar conflicts with other cornerstone environmental laws like the Endangered Species Act.

Water Power Law Group drafted the Coalition’s comments, with assistance from California Sportfishing Protection Alliance and American Whitewater.

Read the Hydropower Reform Coalition’s comments on the proposed NEPA rule here.

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HRC_NEPA Comments_2020-03-10.pdf	539.96 KB

Feds Undermine Clean Water Act Protections: American River Project Center Stage of National Precedent

Colleen McNally-Murphy — Tue, 12 Nov 2019 15:59:02 +0000

Key Words:

FERC

401

Water Quality Certificate

Region:

National

States:

California

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.

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Hydropower Reform Coalition Opposes Another Trump Administration Attack on the Clean Water Act

Colleen McNally-Murphy — Mon, 28 Oct 2019 20:36:11 +0000

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The Hydropower Reform Coalition (HRC) has submitted extensive comments in opposition to the Trump Administration’s attack on Section 401 of the Clean Water Act. Trump’s Administrator of the Environmental Protection Agency (EPA) released a new Proposed Rule on August 22, 2019 that would roll back protections for water quality as required in statute and as affirmed in numerous Supreme Court decisions.

Clean Water Act Section 401 places requirements on applicants for a federal license or permit whose activity may cause a discharge into state or tribal waters. Such applicants must obtain a certification from the state or tribe where the activity occurs authorizing that the activity will conform with state or tribal laws regarding water quality. For hydropower projects licensed by the Federal Energy Regulatory Commission (FERC), this means that issuance of a certification must occur before FERC can issue a new license for a hydropower project. This is important because the jurisdictional state or tribal agencies generally apply environmental protections that are broader in scope and more stringent than the protections that FERC requires.

The Proposed Rule would reduce the scope of certification, even where previously affirmed in Supreme Court decisions. It would also place procedural requirements that would limit state or tribal review and make it more likely that the state’s or tribe's certification authority would be “waived.” It would even allow federal agencies to overrule the state’s or tribe's decisions, in explicit opposition to the law as written and as interpreted in the 1997 federal appeals court case American Rivers v. FERC. In opposition to the Proposed Rule, Water Power Law Group PC and Tarrant, Gillies & Richardson prepared the HRC’s comments. The HRC’s comments demonstrate that the Proposed Rule is unlawful, would disrupt federal licensing proceedings, and would degrade water quality. The comments conclude: “In sum, the Proposed Rule would impede rather than advance the Act’s objective to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ Accordingly, the EPA should not pursue the Proposed Rule.”

Read the HRC's full comments at http://calsport.org/news/wp-content/uploads/2019-10-21.HRC_.401_Comments.pdf.

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You Can't Dam your Way to Paradise

Eric Boucher — Thu, 26 Sep 2019 17:33:35 +0000

You Can't Dam Your Way to Paradise from Zephyr Visuals on Vimeo.

The proposed Temperance Flat Dam would be the second tallest in California and the fifth tallest in the country, yet it would increase water availability in California by less than 1%. The price tag of this proposal is $2.6 billion, and the state has already allocated $171 million in California taxpayer money. That is not nearly enough, but the well-funded and politically connected proponents of the dam are looking to have federal taxpayers foot the bill instead of paying for it themselves. The greater cost, however, would be the drowning of public lands on the San Joaquin River Gorge forever.

In this short film, you will hear from some of the voices that oppose this dam, including Hydropower Reform Coalition Steering Committee members American Whitewater and Friends of the River. Hear the stories from a river explorer, local landowner, and tribal member, all of whom have personal connections to the San Joaquin Gorge. This film makes the case that building a dam with no water won’t get us any closer to Eden. Official selection at the 2019 Mountainfilm Festival and the 2019 Wild & Scenic Film Festival.

Coalition opposes hydropower bills being considered by House Energy and Commerce, Energy Sub Committee

Rupak Thapaliya — Wed, 03 May 2017 14:23:04 +0000

Key Words:

legislation; hydropower; clean water;

Region:

National

The Hydropower Reform Coalition opposes the hydropower bills and discussion drafts being considered by House Energy and Commerce Committee's Energy Subcommittee in a hearing today.

These bills undo many of the checks and balances that have equitably balanced hydropower development with other uses of our public resources for 40 years. Specifically, one of the drafts- the Hydropower Policy Modernization Act- does the following:

severely constrains the ability of federal and state agencies as well as tribes to protect the lands and the waters they manage,
gives power to a bureaucratic agency in Washington DC to protect our natural resources over scientific experts in federal and state agencies working in local communities who understand the resources better from direct on-the-ground experience, and
imposes undue burden on sister agencies that are participants in the licensing process by allowing FERC to set a schedule that even it may be not be able to meet.

While we oppose the current draft, we are willing to work with the Committee and other stakeholders to find common sense solutions. Read this letter we sent to the Energy Subcommittee related to the hydropower bills and drafts.

Coalition to Testify Today Before House Subcommittee on Energy

Rupak Thapaliya — Wed, 15 Mar 2017 15:54:47 +0000

Key Words:

hydropower

FERC relicensing

Region:

National

American Whitewater’s Dave Steindorf will testify before a subcommittee of the US House of Representatives today on behalf of the Hydropower Reform Coalition. The hearing titled “Modernizing Energy Infrastructure: Challenges and Opportunities to Expanding Hydropower Generation” will discuss licensing reforms among others topics.

In a written testimony submitted to the Subcommittee, the Coalition highlighted the need for information to make sound science-based decisions as well as the opportunities provided through collaborative solutions during the licensing process.

The hearing is available for viewing here at 1:15 pm EDT.

PG&E Withdraws License Application On Butte Creek

Rupak Thapaliya — Tue, 07 Feb 2017 14:08:25 +0000

Project:

De Sabla : P-803

Key Words:

FERC relicensing; Butte Creek

Chinook Salmon

Region:

California

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California

Source: California Sportfishing Protection Alliance and American Whitewater

By Chris Shutes (CSPA) and Dave Steindorf (American Whitewater)

In a surprise move, PG&E announced on February 2, 2017 that it was withdrawing its application to relicense the DeSabla – Centerville Hydroelectric Project on Butte Creek and the West Branch Feather River. The reach of Butte Creek affected by the Project is home to the only remaining viable population of spring-run Chinook salmon in California’s Central Valley.

Spring-run salmon in Butte Creek have seen a resurgence over the last twenty years. A substantial part of this was due to investments and improvements downstream of the Project. In addition, since 2003, PG&E and state and federal resource agencies have greatly improved the management of the Project for the fish.

From 2004 to 2009, PG&E went through a formal relicensing process with the Federal Energy Regulatory Commission (FERC) to relicense the Project. In 2016, the State Water Board issued a Water Quality Certification needed for a new license. A new license from FERC was widely expected in 2017.

In a DeSabla – Centerville fact sheet and map that PG&E distributed with its announcement, PG&E describes the project as follows:

The Project diverts a portion of the natural flow of water from Butte Creek and West Branch of the Feather River (WBFR) into canals that carry the water for use in hydroelectric powerhouses. Once water is run through the powerhouses it is ultimately released to Butte Creek. During the summer, the natural flow of the WBFR is augmented by water releases from Round Valley and Philbrook reservoirs. Project diversions have provided additional flow to Butte Creek for more than 100 years. One of the beneficiaries of this additional flow has been the aquatic community in Butte Creek, including Central Valley spring-run Chinook salmon.

While it is true that water from the Project augmented flows below Centerville Powerhouse for 100 years, it is only since 1980 that the Project benefited fish in the eight miles of Butte Creek between DeSabla Powerhouse and Centerville (see map). The 2016 Water Quality Certification requires all the Butte Creek water and the imported water to remain in Butte Creek once it exits DeSabla Powerhouse.

The DeSabla – Centerville Project facilities are built around infrastructure that dates to 1900 and in some cases before. Commissioned in 1900, Centerville Powerhouse has been offline since 2011, and ran only partially for the five years previous to that. To function at all, it would need a complete rebuild. The estimated cost to rebuild was $39 Million in the mid-1990’s; it is almost certainly now double that, or more. DeSabla Powerhouse, nine miles upstream of Centerville, is relatively modern and in good condition, but the small reservoir that feeds it allows water to heat up too much passing through.

In California’s modern energy market, the capability to regulate the grid gives hydropower its greatest value. But unlike many other hydropower projects, powerhouses in the DeSabla – Centerville Project run at a constant rate, day and night, regardless of when power demand is high or low. They also have no ability to help regulate the power grid, especially to respond to short-term changes in supply from intermittent renewable sources like wind and solar.

The real value of the Project is the water it imports from the West Branch Feather River to Butte Creek: value for the fish and value for the farms that use the water further downstream. The fish can’t pay for this service; the farms have never been asked to pay and never have.

PG&E’s decision not to relicense the Project does not lead to a path that is simple. In the next few months, moving into the next few years, PG&E will need to establish a stakeholder engagement process to help determine the Project’s long-term disposition. PG&E will need to engage resource agencies, downstream water rights holders, interested NGO’s, and local residents. The DeSabla – Centerville Project has been part of the community for over a century. Its resource values are enormous. The water that it supplies downstream is essential to the irrigation of thousands of acres of crops.

On September 19, 2015, PG&E bought an advertisement on the editorial page of the San Francisco Chronicle entitled: “Of Bees, Birds and Chillin’ Chinook: All in a Sustainable Day at PG&E.” Mr. Tony Earley, CEO of PG&E at the time, started the ad by extolling PG&E’s work to keep salmon in Butte Creek cool. His major theme stated: “The days are long past when energy companies could afford to think of their mission as separate from conservation, sustainability and good management of our natural resources. Our view must be for the long term. That’s why we live our commitment to conservation through a number of programs.”

We look forward to the opportunity to help PG&E maintain this well-stated goal.

FERC denies Idaho Power petition to override state supremacy over water

Rupak Thapaliya — Fri, 20 Jan 2017 10:21:28 +0000

Key Words:

state water quality standards

fish passage

Federal Energy Regulatory Commission

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Source: Idaho Rivers United

The Federal Energy Regulatory Commission dismissed a petition today that would have overridden state ability to enforce water quality standards—a right that has been codified by the Supreme Court. The ruling was a win for IRU and other conservation groups that are seeking better water quality standards at three Idaho Power Co. dams on the Snake River in Hells Canyon.

The petition, filed by Idaho Power Co. on Nov. 23, 2016, asked FERC to preempt state authority over clean water management because Idaho and Oregon have different positions on introduction of anadromous salmon and steelhead. Both states have jurisdiction because the Snake River in Hells Canyon constitutes the state line.

Idaho Power says “the two states do not agree on how to resolve issues regarding fish passage and reintroduction of anadromous fish in tributaries above Hells Canyon Dam; Oregon supports fish passage and reintroduction, and Idaho opposes these measures,” according to FERC’s dismissal order.

IRU Executive Director Kevin Lewis called the filing by Idaho Power “an attempt to bully the state of Oregon.”

“If this had been granted it would have squashed Oregon’s ability to regulate its own water quality—to Idaho Power’s benefit,” Lewis said. “For nearly 20 years Hells Canyon relicensing has been unnecessarily dragged out because of Idaho Power’s inability to achieve Clean Water Act certification. That’s not Oregon’s fault.”

Moreover, FERC found Oregon’s fish passage requirements, though still in draft form, are likely legal.

“In addition, we find no basis to presume that a state could not include provisions requiring fish passage and reintroduction as conditions of its water quality certification,” the agency wrote.

The Hells Canyon Project consists of three dams and three reservoirs—Brownlee, Oxbow and Hells—on a 38-mile section of the Snake River. FERC issued a 50-year license for the project in 1955. The license expired on July 31, 2005.

Idaho Power filed its application for a new license in July 2003. Also at that time it filed for Clean Water Act certifications from Idaho and Oregon.

“Currently, Oregon’s draft water quality certification includes conditions that would require fish passage and reintroduction of anadromous fish above Hells Canyon Dam, whereas Idaho’s draft certification includes conditions that would preclude Idaho Power from introducing or reintroducing fish species to Idaho waters without Idaho’s consent,” FERC wrote.

Both Idaho and Oregon have released their draft water quality certifications for public review and comment. The comment periods close Feb. 13 and, presumably, state water quality certification will occur later in 2017.

Click here to read FERC's order.