Clean Water Act Party Poopers
Milton Diversion Dam, one of the nine on-stream reservoirs in the Yuba-Bear Hydroelectric Project. Hydroelectric projects have devastating consequences for river ecosystems. The federal Clean Water Act empowers states to prescribe conditions for such projects to reduce these impacts. Credit: Nevada Irrigation District.
Some folks just won’t quit. Some years ago, the Nevada Irrigation District (NID) asked the Federal Energy Regulatory Commission (FERC) to supersede the State of California’s authority to protect its waters under the Clean Water Act (CWA). NID sought to prevent the state from issuing a water quality certification under CWA § 401 on its Yuba-Bear Hydroelectric Project. FERC obliged. We responded by taking the issue to court. Friends of the River, CSPA, SYRCL, and the Sierra Club won our appeal to the federal Ninth Circuit Court of Appeals.
As of this September, NID is again asking FERC to kick the state out of ensuring that their project meets state Clean Water Act standards. Déjà vu. We wrote FERC that NID had just lost their case in the appeals court and can’t really have a do-over.
We are awaiting FERC’s response.
On a related matter, one of the goals of the Trump Administration EPA was to make it incredibly difficult for states (and tribes with certification authority) to enforce their water quality standards. Over our objections, the U.S. EPA issued rules doing that.
Environmental groups sued over the Trump CWA rules in federal court in the Northern District of California. There was a preliminary opinion that the Trump EPA rules were contrary to law, but the final decision awaits a trial on the merits of the case.
In the meantime, the EPA under the Biden Administration rewrote the Trump EPA rules. The Biden rules just took effect. As might be predicted, a number of deep-red states have filed a lawsuit against the Biden rules, ones that tracked the statutory language of the actual Clean Water Act, which gives states authority to certify that federal actions complied with state water quality rules. In other words, these states have sued in objection to… state’s rights. Odd.
(Only in the crazy U.S. would some state governments oppose having the authority — but not the requirement — to protect state water quality!)
Stay tuned, I guess.
