American Whitewater Helps Defend State’s Rights Under Clean Water Act, Again

The D.C. Circuit issued its opinion in Nevada Irrigation District v. Federal Energy Regulatory Commission, a court case deciding whether the irrigation district could stop providing instream flows below their hydropower projects in the Yuba and Bear watersheds in California. American Whitewater, along with California Sportfishing Protection Alliance, Friends of the River, Sierra Club, and South Yuba River Citizen’s League intervened as parties. This case follows the recent case of Village of Morrisville v. Federal Energy Regulatory Commission where we filed an amicus brief. In the Nevada Irrigation District case, we were represented by Julie Gantenbein at Water Power Law. Relying on its Morrisville decision, the Court rejected Nevada Irrigation District’s claims that the Water Board waived its Clean Water Act 401 authority to certify the project's compliance with water quality standards by failing to act timely on the certification request. 

The Court found that it was Nevada Irrigation District’s own failure to comply with California Environmental Quality Act requirements that caused the delay, rather than due to some coordinated scheme to circumvent 401's timeliness requirement. Through our involvement with the Morrisville and Nevada Irrigation District cases, along with our involvement with Southern Environmental Law Center in the Louisiana 401 case, American Whitewater is leading in its advocacy to protect and strengthen the critical role of states in hydropower licensing proceedings. These cases also pair with our state litigation in New York, Maine, Vermont, and New Hampshire, holding states accountable when they fail to use their 401 authority to protect flows and existing recreational uses.