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CSPA and Foothills Water Network protest NID water rights petitions
by Chris Shutes, CSPA FERC Projects Director
December 21, 2009 -- CSPA and its allies in the Foothills Water Network (FWN) have protested a series of water rights petitions filed by the Nevada Irrigation District. These petitions seek to align a series of water rights permits and licenses with the way that NID actually operates its water delivery system.
Part of NID’s water deliveries are bound up with the coordinated operations of the Yuba-Bear (NID) and Drum-Spaulding (PG&E) hydroelectric projects, which are currently undergoing coordinated relicensings under the authority of the Federal Energy Regulatory Commission. One aspect of NID’s petitions seeks to allow NID to run certain permitted water through NID and PG&E’s powerhouses in cases or at times when it does not at present have the right to do so. The frequency and extent of these cases is unclear; one purpose of the protest is to require clarification and quantification from NID.
NID seeks to have these petitions approved administratively. Because granting these petitions brings forward significant legal issues and may cause significant resource impacts, FWN protests the request for administrative disposition.
The petitions raise interesting questions regarding the respective jurisdictions of the Federal Energy Regulatory Commission (which regulates hydropower projects) and the State Water Resources Control Board (which regulates water rights). NID and PG&E explicitly sought to keep the downstream-most portions of NID’s water delivery system out of the FERC relicensing process. Since FERC up till now has accepted that exclusion, it appears clear to FWN that environmental concerns in the lower Bear River and portions of the West Placer Creeks are subject to the jurisdiction of the Water Board.
The petitions raise legal issues relating to how periods of maximum use are quantified when water rights permits are licensed. Further, they raise issues about how precisely actual and potential use of water must be quantified under existing permits or licenses, and under conditions where a party seeks to change permits or licenses.
In addition to seeking more complete description of potential impacts to aquatic resources that may arise by granting these petitions, FWN asks that compliance with applicable law that protects instream resources be required and demonstrated.
The Foothills Water Network is a coalition of non-governmental agencies that was formed in 2004 to develop strategies and working relationships for FERC relicensings in the Middle Fork American, Yuba, and West Placer Creeks drainages. CSPA is an active participant in the Foothills Water Network as part of CSPA’s ongoing participation in the Yuba-Bear/Drum-Spaulding relicensings.