Déjà vu on the Clean Water Act Beat

An interior shot of the D.C. Circuit Court of Appeals, the forum where NID is making another attempt to undermine the State’s authority under the federal Clean Water Act. Credit: Library of Congress

Didn’t we just win some significant victories defending the state and tribal role (and our influence) to ensure that federal projects, licenses, and permits meet state/tribal clean water standards?

Indeed, we won in the California Supreme Court, two federal appeals courts, and filed victorious briefs against a certiorari attempt at the U.S. Supreme Court to reverse one of the appeals court victories. We use an insider phrase for these cases — “fighting against the 401 apocalypse,” referring to the state and tribal water-quality-certification authority contained in §401 of the federal Clean Water Act — itself a simpler title to the long name of the actual statute.

The Nevada Irrigation District (NID), however, would like to retry the federal Ninth Circuit Court case that it lost. To do so, after first failing to persuade FERC, it has asked the court to waive state Federal Clean Water Act authority in two pending federal (FERC) license proceedings, but this time in the D.C. Circuit Court.

So once again, we are seeking to intervene (become a party to) in the NID litigation, but this time across the country in our nation’s capital.

And yes, that means more litigation expenses for Friends of the River and our small collection of conservation groups that participate in FERC license proceedings.

I could complain, but this is what we do. What we have to do.