States Can’t Delay Reviewing Dam Water Quality, Court Rules

(CN) – The D.C. Circuit sided Friday with a Native American tribe in finding that corporations cannot “scheme” with state governments to indefinitely delay water-quality reviews that could lead to stricter environmental protection conditions for dams and hydropower projects.

The Hoopa Valley Tribe petitioned the circuit court in 2014 because PacifiCorp – a company operating dams on the Klamath River on the California-Oregon border – repeatedly withdrew and refiled its water-quality certification requests with state governments to sidestep licensing requirements.  Without those certifications, the Federal Energy Regulatory Commission could not issue a hydropower-operating license — which could subject the dams to stricter environmental restrictions.

Writing for a three-person panel Friday, U.S. Circuit Judge David Sentelle said allowing states and companies to adopt a “withdrawal-and-resubmissions scheme” to avoid issuing water-quality findings would illegally override the one-year statutory licensing limit set by Congress.

“Such an arrangement does not exploit a statutory loophole; it serves to circumvent a congressionally granted authority over the licensing, conditioning, and developing of a hydropower project,” the 14-page opinion states.

The Hoopa Valley Tribe claims foot-dragging by state government agencies and federal regulators have delayed stricter rules for fish passage and water flows for more than a decade.

“This case shows that states must not ignore the rights and interests of tribes with co-management authority regarding fisheries,” Hoopa Valley Tribal Chairman Ryan Jackson said.

By failing to act on the withdrawn and refiled certification requests, the states waived their authority under the Clean Water Act to review the projects’ impact on water quality prior to FERC license approval, the court found.

“The court’s finding of waiver means that FERC could now proceed to complete the re-licensing of the Project with new protective conditions,” Thane Somerville, an attorney for Hoopa Valley with the the Seattle firm Morisset Schlosser, said in an email.

PacifiCorp was required to follow the “withdrawal-and-resubmissions scheme” as part of a 2010 settlement agreement with California, Oregon and other stakeholders, including fishermen and rancher interest groups. The settlement was later updated in 2016 to call for removing four dams from the Lower Klamath River, a project that is currently pending FERC approval to transfer control of those dams to a new company.

In a statement Friday, the Hoopa Valley Tribe said its appeal has no immediate impact on the separate effort to obtain an FERC license for the newly formed Klamath River Renewal Corporation to remove those four dams.

Native American tribes and conservation groups have long supported dam removal on the Klamath River, arguing it will help restore endangered salmon and steelhead populations that have been devastated by hydropower projects, agriculture, and climate change.

“The tribe continues to support prompt removal of the four Lower Klamath River dams under the current license transfer and surrender applications currently being evaluated by FERC,” Somerville said.  “However, if that process ultimately fails, today’s decision means that FERC could act on the pending re-licensing application and impose new environmental conditions on the project without further delay.”

FERC and PacifiCorp attorney Charles R. Sensiba, of Van Ness Feldman in Washington, did not immediately respond to emails and phone calls seeking comment Friday afternoon.

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