The Yuba Water Agency is in the process of applying for a new license to continue its hydroelectric operations along the Yuba River, but agency leaders say some requirements issued by the State Water Resources Control Board threaten the effort by making it too costly.

The agency filed lawsuits in state and federal court Friday afternoon to essentially vacate the state board’s requirements to obtain what is called a water quality certification. Agency leaders say the requirements included in the certification would cost Yuba Water anywhere from $500 million to $1 billion to implement over the course of the new Federal Energy Regulatory Commission (FERC) license, which typically lasts about 50 years.

“What we are hoping to accomplish with these lawsuits is that the state water board’s water quality certification be proven to be invalid through the courts,” said Willie Whittlesey, general manager of the Yuba Water Agency.

The estimated financial impacts of the requirements include about $300 million in lost water transfer revenue, about $200 million in reductions in the value of hydroelectric production and increased costs associated with operations, and at least $600 million in capital, operations and maintenance costs associated with a program to move fish above Englebright Dam.

While it’s ultimately a federal license, the agency is seeking to operate the hydroelectric facilities along the river and the California State Water Resources Control Board is the entity in charge of protecting the state’s natural resources and the certificate is a necessary requirement in the process.

Whittlesey said his team did not want to go the legal route, but the state water board was not willing to work collaboratively to solve the issues. If lawsuits weren’t filed by the middle of this month, he said, the agency would be past its statute of limitations for filing.

“The YCWA lawsuit filing today comes as a surprise to the State Water Resources Control Board. The water board has not seen the complaints filed by the agency, and therefore is not in a position to comment in detail on the litigation,” said Edward Ortiz, a public information officer for the state water board.

Ortiz said the state water board hoped to avoid the expense of litigation, and that the water agency is currently under no immediate obligation to implement any of the requirements included in the water quality certification because FERC had determined the board had waived its permitting authority after issuing the certification after the deadline – a decision the state water board is currently challenging. 

“As the only state agency with permitting authority, the water board seeks to ensure the protection of California’s water quality throughout the new 50-year license that is currently before FERC,” Ortiz said. “The water board hopes to continue a constructive dialogue with YCWA.” 

 

Central issues

The YWA says the state board’s certification, which was issued back in July, significantly harms Yuba County’s disadvantaged communities because of the added regulation and subsequent costs to implement, which could dramatically reduce surface-water supplies for Yuba County farms and irrigation districts and could push the county’s groundwater basin back into overdraft.

Another issue the agency has with the certification is that it was created with zero collaboration, public process or science.

Earlier this year, FERC determined that the state water board waived its right to issue a certification after it missed its window to do so. While the state certification is meant to protect the environment through mitigation measures, YWA leaders say those precautions were included and addressed in the FERC licensing process, which resulted in dozens of environmental requirements that will cost more than $180 million to implement.

Yuba Water also wasn’t notified or given the opportunity to comment on the state water board’s certification, while others were.

“Through the state’s Public Records Act, we learned that, while the state board was developing the certification, its staff members were in communication with state and federal agencies and environmental groups, giving others the opportunity to provide input, while not giving Yuba Water or others who would be impacted any similar opportunity,” Whittlesey said.

Lastly, the agency contends that some of the measures included in the certification are patently unfair, such as requiring Yuba Water to mitigate the impacts of things like hydraulic mining that took place during the gold rush, more than 100 years before the agency was even created.

Also, under the certification, the board’s executive director could require Yuba Water to mitigate for the federal project at Englebright Dam, which is owned by the U.S. Army Corps of Engineers. The certification places responsibility for mitigating all of the Yuba River’s water diversions, despite the agency only diverting 11 percent of the river’s water currently – 89 percent is either natural flow or has been diverted or used by others, according to a press release.

 

Next steps

After the initial issuance of the certification, Yuba Water filed a petition for the state water board to reconsider, highlighting how the requirements would have devastating economic impacts to the agency and the communities it serves. No response has been provided in the two months since.

Friday’s lawsuits were filed in both the California Superior Court (Fresno County) and the U.S. District Court in Washington, D.C., as water quality certifications are a mixture of federal and state law under the federal Clean Water Act and California’s water quality laws.

“Bottom line, if you read the black and white text of the water quality certification, it gives the state water board’s executive director authority to change operations throughout the license, and they have the power to do that without any input from other members of the state board,” Whittlesey said. “So that’s one of our biggest issues with this, is that it gives all the power to individual staff members.”

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