Loading...
HomeMy WebLinkAbout03.26.20 Email from FERC - FW_ Comment on Filing submitted in FERC P-2088-068 by California Department of Fish and Wildlife,et al. From:Schuman, Amy To:Alpert, Bruce;Bennett, Robin;Clerk of the Board;Connelly, Bill;Cook, Holly;Lambert, Steve;Lucero, Debra;McCracken, Shari;Ring, Brian;Ritter, Tami;Rodas, Amalia;Sweeney, Kathleen;Teeter, Doug Subject:FW: Comment on Filing submitted in FERC P-2088-068 by California Department of Fish and Wildlife,et al. Date:Thursday, March 26, 2020 11:26:44 AM Good morning, Please see the email below from FERC. Amy Schuman Associate Clerk of the Board Butte County Administration 25 County Center Drive, Suite 200, Oroville, CA 95965 T: 530.552.3308 | F: 530.538.7120 Twitter | Facebook | YouTube | Pinterest -----Original Message----- From: 'FERC eSubscription' <eSubscription@ferc.gov> Sent: Thursday, March 26, 2020 11:26 AM Subject: Comment on Filing submitted in FERC P-2088-068 by California Department of Fish and Wildlife,et al. .ATTENTION: This message originated from outside Butte County. Please exercise judgment before opening attachments, clicking on links, or replying.. On 3/26/2020, the following Filing was submitted to the Federal Energy Regulatory Commission (FERC), Washington D.C.: Filer: California Department of Fish and Wildlife California Department of Fish and Wildlife (as Agent) Docket(s): P-2088-068 Lead Applicant: South Feather Water & Power Agency Filing Type: Comment on Filing Description: Comment of California Department of Fish and Wildlife under P-2088. To view the document for this Filing, click here https://urldefense.com/v3/__http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20200326- 5133__;!!KNMwiTCp4spf!XPR0Ge_b4ZDAp0LeROPJ8CnWNVRf1XUJqyv9Vsl0b2FYhrMiHLoaz7o6L8iuNYKTLC4tLRQSFIM$ To modify your subscriptions, click here: https://urldefense.com/v3/__https://ferconline.ferc.gov/eSubscription.aspx__;!!KNMwiTCp4spf!XPR0Ge_b4ZDAp0LeROPJ8CnWNVRf1XUJqyv9Vsl0b2FYhrMiHLoaz7o6L8iuNYKTLC4tltgVGd8$ ------------------------------------------------------------------------ Please do not respond to this email. Online help is available here: https://urldefense.com/v3/__http://www.ferc.gov/efiling-help.asp__;!!KNMwiTCp4spf!XPR0Ge_b4ZDAp0LeROPJ8CnWNVRf1XUJqyv9Vsl0b2FYhrMiHLoaz7o6L8iuNYKTLC4tj-4W4VM$ or for phone support, call 866-208-3676. Natural Resources Agency GAVIN NEWSOM, Governor DEPARTMENT OF FISH AND WILDLIFE CHARLTON H. BONHAM, Director North Central Region/Region 2 1701 Nimbus Road, Suite A Rancho Cordova, CA 95670 (916) 358-2900 www.wildlife.ca.gov March 25, 2020 Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First St, NE Washington DC, 20426 SUBJECT: FERC # 2088-068, Notice of Petition for Waiver Determination Dear Ms. Bose: This correspondence is in response to a March 4, 2020, notice from the Federal Energy Regulatory Commission (FERC or Commission) requesting comments on a December 12, 2019, filing from the South Feather Water and Power Agency (SFWPA, Licensee). The December 12, 2019, filing requests that the Commission find that the California State Water Resources Control Board waived its authority to issue a certification for the South Feather Power Project (Project) under Section 401 of the Clean Water Act, 33 U.S.C. § 1341 (a)(1) AUTHORITY The California Department of Fish and Wildlife (Department) is the appropriate State Fish and Wildlife agency for resource consultation and Federal Power Act Section 10(j)(16 U.S.C. section 803 (j)) purposes. The fish and wildlife resources of the State of California are held in trust for the people of the State by and through the Department (Fish & G. Code § 711.7). The Department has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of those species (Fish & G. Code § 1802). The mission of the Department is to manage California's diverse fish, wildlife, and plant resources, and the habitats on which they depend, for their ecological values and for their use and enjoyment by the public. It is the goal of the Department to preserve, protect, and as needed, to restore habitat necessary to support native fish, wildlife, and plant species within the FERC-designated boundaries of these projects, as well as the areas adjacent to these projects in which resources are affected by ongoing project operations and maintenance activities and recreational use. COMMENTS The Department opposes this waiver for the primary reasons outlined below: Conserving Califo0 Ms. Bose Page 2 of 6 March 25, 2020 1. SFWPA undermined State Water Resources Control Board (SWRCB) Clean Water Act Section 401 authority by delaying issuance of the water quality certification while benefitting financially, and the SWRCB ultimately completed the water quality certification before the Hoopa Valley Tribe court case: SFWPA voluntarily contributed to the delay in the issuance of the Section 401 water quality certification by submitting water quality certification request withdrawals without an agreement of abeyance from the SWRCB. The SFWPA benefitted financially from the delay in license issuance. The Hoopa Valley Tribe v. Fed. Energy Regulatory Commn (Hoopa Valley Tribe) decision occurred after SFWPA had received a SWRCB water quality certification. 2. Water quality conditions for the Project are not inconsistent with the United States Forest Service (USFS) 4(e) conditions and are necessary for protection of sensitive species including the newly listed, California Endangered Species Act- protected foothill yellow-legged frog (Rana boylii). 3. CDFW has been actively participating in the Project relicensing effort in coordination with the licensee since 2004. 1. Waiver Requests Undermine 401 Authority The Federal Water Pollution Control Act (33 U.S.C. §§1251-1387) (Clean Water Act) was enacted to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. (33 U.S.C. §1251(a)). Section 401 of the Clean Water Act requires every applicant for a federal license or permit which may result in a discharge into waters of the United States to provide the licensing or permitting federal agency with certification that the project will be in compliance with the Clean Water Act. (33 U.S.C. §1341(a)(1)). The State Water Resources Control Board (SWRCB) is designated as the state water pollution control agency for all purposes stated in the Clean Water Act. (Water Code §13160.) Section 401 further states that if the State fails or refuses to act on a request for certification within one year after receipt of such request, the certification requirements shall be waived as to such application. (33 U.S.C. §1341(a)(1)). The purpose of the waiver provision is to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification under Section 401. Alcoa Power Generating Inc., v. Fed. Energy Regulatory Commn, 643 F.3d 963,972 (D.C. Cir. 2011). Licensee Delayed Water Quality Certification on Own Volition Section 401, however, does not on its face address an applicants withdrawal of a request for certification and resubmittal of another certification. The D.C. Circuit court held in Hoopa Valley Tribe v. Fed. Energy Regulatory Commn (Hoopa Valley Tribe), 913 F.3d 1099 (D.C. Cir. 2019) that withdrawal of an applicants request for certification and resubmittal of that same request does not restart the one-year time period. In Ms. Bose Page 3 of 6 March 25, 2020 Hoopa Valley Tribe, the licensee and the SWRCB had an agreement that the licensee would continue to withdraw and resubmit the exact same application for certification over a number of years. However, a Court has not yet determined, and the Commission has not yet ruled, on whether a strict interpretation of the one-year deadline in the Clean Water Act applies to a circumstance where the licensees own actions, absent an agreement with the State, prevent the State agency from issuing a decision on the merits of a certification application. Unlike the Hoopa Valley Tribe licensee, SFWPA never entered into an agreement with the SWRCB or other State and federal agencies to hold in abeyance Clean Water Act water quality certification. The SWRCB, consistent with FERC precedent and practice, notified SFWPA that the one-year deadline under Section 401 was approaching and that, if SFWPA desired to avoid having its request for certification denied without prejudice, it should withdraw its request. The record indicates that SFWPA withdrew and re-submitted water quality certification requests 10times over 10 years. Presumably, SFWPA requested withdrawal of its request for water quality certification because it viewed a voluntary withdrawal as preferable to SWRCB denial of its request. For this Project, there is no larger agreement between state and federal agencies to hold the process in abeyance, and it is SFWPA, by its own actions of voluntary withdrawals, that has contributed to the delay in the issuance of the water quality certification. Licensee Sought New License and Protective Measure Cost Avoidance The Projects new FERC license contains necessary requirements to update infrastructure and provide increased minimum instream flows. At a minimum, the Final Environmental Impact Statement (FEIS) stated that final 4(e) measures alone would 1 cost SFWPA $2.5 million per year (FEIS pages 5-46 through 5-52). SFWPA has actively created a scenario that contributed to the delay in the issuance of the new license by withdrawing its request for a water quality certification each year, thereby avoiding significant annual costs. By continuing to withdraw its application for a water quality certification, SFWPA has saved an estimated $2.5 million per year. Now, after years of delay in which SFWPA was an activelicensing process participant and benefactor, the licensee is trying to avoid additional costsfor full implementation of protective measures that would be codified in the water quality certification. The Commission should not reward SFWPA for leveraging years of financial gain from less costly annual licenses by waiving this certification. 1 Federal Energy Regulatory Commission, Office of Energy Projects, Final Environmental Impact Statement, FERC FEIS/EIS-0225F, June 2009, www.ferc.gov Ms. Bose Page 4 of 6 March 25, 2020 Hoopa Valley Tribe Decision Misapplied Retroactively Here, the licensee and the SWRCB do not have an agreement to defer a certification decision. Instead, the SWRCB issued a water quality certification for FERC Project No. 2 2088 on November 30, 2018, before the Hoopa Valley Tribe was decided, and before the licensee submitted a water quality certification waiver request. FERC should not apply the Hoopa Valley Tribe decision retroactively. A retroactive application of that decision would be unfair to many parties that have relied on FERCs past practice of only applying its decisions prospectively and that have participated in the relicensing process over many years, (see Section 3). 2. Project Water Quality Conditions are Consistent with USFS 4(e) Conditions and Protective of Sensitive Species In their petition for waiver, SFWPA falsely asserted that the Water Quality Certification conditions are both inconsistent with and duplicative of the USFS 4(e) conditions. Between the filing of the final USFS 4(e) conditions and the waiver request, key resource management changes occurred. Thefinal 4(e) conditions were written at a time when scientists were beginning to document hydropower impacts to the foothill yellow-legged frog (FYLF). Since that time, scientists from the Department, USFS, and academia have studied the impacts of hydropower operations (hydropower peaking and river ramping rates) and its effects on FYLFs. The results of these studies have shaped resource managers understanding of how to protect this sensitive species. It is this research that helped inform the California Fish and Game Commissions decision to add the FYLF to the list of protected species under the California Endangered Species Act (CESA) in 2019. While the 2008 USFS conditions contained monitoring measures for FYFL and direction to study Project ramping rates, the final 2019 water quality certification conditions contain more license-specific, up-to-date measures for protection of this listed species (Conditions 3A and 1K, described below), and are therefore neither inconsistent with nor duplicative of the USFS 4(e) conditions. The SFWPA filing also asserts that the omission of the Water Quality Certification conditions from the FERC license would have no adverse environmental impact. Conversely, exclusion of the conditions in the Water Quality Certification from the FERC license risks many adverse environmental impacts. For example, the Water Quality Certification adds a detailed valve maintenance plan (Condition 1K). This detailed plan requires SFWPA to conduct all dam safety valve testing outside of the FYLF breeding 2 State of California, State Water Resources Control Board, Water Quality Certification for South Feather Water and Power Agency, South Feather Power Project, FERC Project # 2088 https://www.waterboards.ca.gov/waterrights/water_issues/programs/water_quality_cert/southfeather_ferc 2088.html Ms. Bose Page 5 of 6 March 25, 2020 season, if possible. This condition is not in the USFS 4(e) conditions. It is included in the water quality certification conditions in response to an incident wherein SFWPA opened a valve for testing and the valve would not shut. If a similar incident occurred in the FYLF breeding season, egg masses or tadpoles could be washed out. In addition to a more detailed valve maintenance plan, the Water Quality Certification adds detailed planning requirements for gaging (Condition 2), long term ramping rates (Condition 3A), extremely dry conditions (Condition 1L), large woody debris (Condition 15), sediment management at the Slate Creek Diversion (Condition 5), water quality management (Condition 4), and amphibian monitoring and entrainment (Condition 8). All of these planning requirementsinclude protective measures for amphibians listed under CESA such as the FYLF and other native fish and wildlife, as well as measures to improve water quality that are consistent with Californias applicable water quality basin plan. In its December 12, 2019, petition for waiver filing to FERC, SFWPA further states that the SFWPA intends to file any agreed-upon plans with FERC. Substituting the many plans required in the water quality certification, as outlined above, with voluntary plans that have no regulatory backstop is unlikely to provide accountable protections for fish and wildlife resources in the Project area.Without protective measures codified in the Water Quality Certification, there will likely be adverse environmental impacts to fish and wildlife resources in the Project area. Finally, the Project footprint contains and affects areas that are outside the National Forest System lands including rivers and streams. The conditions found in the water quality certification are the only conditions that are applicable to these non-federal areas, and therefore, are not duplicative of USFS 4(e) conditions. 3. CDFW Actively Participated in Project Relicensing in Coordination with the Licensee The December 12, 2019, petition for waiver filing with FERC acknowledges on page 9 that over the past year staff from the USFS, USFWS, SWRCB and CDFW and NGOs have committed considerable time and effort to develop implementation plans for the USFS 4(e) and water quality certification conditions. More specifically and accurately, the Department and other relicensing participants have been collaborating on the relicensing of this Project for over 15 years. This collaboration started in 2004 under the Alterative Licensing Process before SFWPA submitted its application for a new license with FERC. The Department has been meeting with SFWPA staff and other relicensing participants on average once per month, depending on the phase of licensing. During the relicensing timeframe, some licensing measures were agreed- upon, and where agreement was not reached, the Department and other resource 3 agencies filed terms and conditions (2008) reflective of Department understanding of 3 California Department of Fish and Game, South Feather Water and Power Agency, FERC Project #2088-068, Recommendations Pursuant to Federal Power Act Section 10(j), April 14, 2008, www.ferc.gov Ms. Bose Page 6 of 6 March 25, 2020 how to protect Project-affected species and habitats. Over the past two years, staff from the SFWPA, SWRCB, USFS, USFWS, the Department and NGOs met to discuss the results of the more recent scientific research as well as the then-impending listing status for FYLF. These meetings resulted in general agreement on most, but not all, measures that could be considered for inclusion in the final Section 401 water quality certification. This significant investment in time and coordination by allparties is lost if the water quality certification is waived. CONCLUSION The purpose of the time limitation in Section 401 of the Clean Water Act is to prevent a State from indefinitely delaying a federal licensing proceeding. In this case, the SWRCB already issued a water quality certification, so the licensees past water quality certification withdrawals and current request to FERC to waive the SWRCB authority under Section 401 of the Clean Water Act are the primary cause of license delay. The Commission should not reward SFWPA for these years of delay, during which time SFPWA avoided costs, by waiving this certification. The waiver request also falsely states that the USFS 4(e) conditions and water quality certifications are duplicative. Instead, the conditions in the water quality certification reflect the current state of science and expand on protective measures and river management for listed species and the beneficial uses of this basin. Finally, the Department has been actively participating in the Project relicensing effort in coordination with the licensee since 2004 and this waiver request, if granted,will undermine the Departments ability to serve its mission and may compromise future participation in the FERC process. Thank you for requesting and considering comments on SFWPAs request that FERC make a determination that the SWRCB forfeited and waived its authority under Section 401 of the Clean Water Act. If you have any questions regarding this letter, please contact Sarah Lose, Senior Environmental Scientist (Specialist) at (916) 747-5226 or by email at Sarah.Lose@wildlife.ca.gov. Sincerely, Kevin Thomas Regional Manager ec: Briana.Seapy, briana.seapy@wildlife.ca.gov Beth Lawson, beth.lawson@wildlfe.ca.gov Sarah Lose, sarah.lose@wildlife.ca.gov Nancee Murray, Nancee.murray@wildlife.ca.gov California Department of Fish and Wildlife