Op-Ed: California Sportfishing Protection Alliance - There’s less to NID’s Supreme Court Appeal than meets the eye
In a February 8, 2023 op-ed, the president of the Board of Directors of Nevada Irrigation District (NID) writes that an appeal to the US Supreme Court by NID could have “severe impacts” to NID and the community it serves. The op-ed omits the key facts on which the US Court of Appeals for the Ninth Circuit ruled last August. It also exaggerates the impacts to NID and obscures the issues.
In 2008, Nevada Irrigation District (NID) started “relicensing” its Yuba-Bear Hydroelectric Project. The Federal Energy Regulatory Commission (FERC) first licensed the Project, for 50 years, in 1963.
As part of the relicensing process, NID requested in 2012 that the State Water Resources Control Board issue a document called a “certification” under Section 401 of the Clean Water Act. The Clean Water Act is the nation’s bedrock law that protects water quality. Its goal is to keep America’s waters “fishable, swimmable, and drinkable.”
The 401 certification would, if issued, certify that NID’s hydroelectric project would comply with state water quality laws and standards. Like the new FERC license, the 401 certification would last 40-50 years.
The Key Facts: NID Didn’t Do its Homework
As part of the 401 certification process, NID was required to provide the State Water Board with an environmental report under the California Environmental Quality Act (commonly called CEQA). In the 2012 letter in which NID requested certification, NID said it would complete CEQA, as the “lead agency.” That meant it promised to put a CEQA document together, go through a public process, and submit the document to the State Water Board.
NID didn’t do its homework. It didn’t complete CEQA. It didn’t even start. It’s that simple.
The Clean Water Act contains a one-year deadline from the date of a request for 401 certification to when the State Water Board must act on the request. After just under a year, instead of having the State Water Board deny certification because NID it hadn’t done its CEQA homework, NID withdrew and resubmitted its request, effectively starting over. The State Water Board didn’t make NID withdraw and resubmit its request. NID did that all by itself, and it did it five more times.
Then, in 2019, NID tried to leverage a new court ruling to avoid 401 certification altogether. It asked FERC to blame the State Water Board for not “acting” in one year. NID asked FERC to “waive” the State Water Board’s right to certify. This is something like blaming the teacher for your not graduating because the teacher let you drop the class.
In response, FERC issued an Order that said the State Water Board “coordinated” with NID for letting NID withdraw its certification request. On that flimsy basis, FERC found the state had waived its authority to certify NID’s project.
The US Court of Appeals for the Ninth Circuit didn’t buy it. In August 2022, the court wrote an opinion that said NID had delayed by not completing CEQA. There was no “substantial evidence” that the State Water Board contributed to delay. No waiver.
It is important to note that FERC has declined to appeal, accepting the Ninth Circuit’s opinion that waiver of certification was wrong.
The Impacts to NID
The sad part of NID’s appeal is that there’s just not much for NID to complain about. The conditions in the 401 certification are almost exactly the same as the conditions required by the other resource agencies and by FERC.
The only substantive concern the op-ed articulates is fear that the State Water Board could hypothetically in the future change the requirements in the 401 certification “administratively.” The unstated fear is that an uncontrolled regulator could arbitrarily harm NID.
But that’s not how it works. While the State Water Board can change requirements, it first has to give notice and provide “the opportunity to be heard.” That means NID can comment, petition for reconsideration, and file suit if it decides to. There is a process and recourse. And any new conditions have to meet the standards of reasonableness and substantial evidence.
The Issues at Stake
NID’s Directors are spending NID ratepayers’ money on two issues. Issue number one is that NID is trying to avoid regulation by the State by arguing for a procedural loophole that doesn’t exist. Issue number two is that NID’s pursuit of waiver is part of a broader agenda: NID’s D.C. attorneys and others in the hydropower industry are trying to weaken the Clean Water Act.
These issues are why the California Sportfishing Protection Alliance, the South Yuba River Citizens League, the Mother Lode Chapter of the Sierra Club, and Friends of the River joined the State Water Board to successfully petition the US Court of Appeals for the Ninth Circuit to overturn FERC’s waiver of the 401 certification for the Yuba-Bear Hydroelectric Project.
From the editor: This photo shows kayakers taking advantage of a rare boatable flow on the Middle Fork of the Yuba River. Due to water impoundment and diversions, including the Yuba-Bear Hydroelectric Project, the river is rarely runnable. In this photo, John Kosakowsky navigates the first class IV rapid at a flow of 450 cubic feet per second. This section of the river is mostly dewatered and kept at flows around 30 cubic feet per second. Photo courtesy of Jeff Wasielewski.
