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SCE Petition for Declaratory Order

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SCE Petition for Declaratory Order Troutman Sanders LLP 401 9th Street, N.W., Suite 1000 Washington, D.C. 20004-2134 troutman.com Charles R. Sensiba [email protected] June 17, 2019 Ms. Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First Street, NE Washington, DC 20426 Re: Southern California Edison Company; Petition for Declaratory Order and Request for Expedited Consideration; Project Nos. 67-__, 120-__, 2085-__,2086-__, 2174-__, 2175-__ Dear Secretary Bose: As set forth in the enclosed Petition for Declaratory Order (“Petition”), Southern California Edison Company (“SCE”) respectfully requests the Federal Energy Regulatory Commission (“FERC” or “Commission”) to declare on an expedited basis that the California State Water Resources Control Board (“SWRCB”) has waived authority under Section 401 of the Clean Water Act1 (“CWA”) for failure to act on SCE’s requests for water quality certification (“WQC”) within the statutorily prescribed one-year time period for all six projects within the Big Creek Hydroelectric System (collectively referred to as the “Big Creek Projects”) that are pending for relicensing before the Commission. For purposes of this Petition, the Big Creek Projects consist of Big Creek Nos. 2A, 8, and Eastwood Hydroelectric Project (FERC No. 67); Big Creek No. 3 Hydroelectric Project (FERC No. 120); Mammoth Pool Hydroelectric Project (FERC No. 2085); Vermilion Valley Hydroelectric Project (FERC No. 2086); Portal Hydroelectric Project (FERC No. 2174); and Big Creek Nos. 1 and 2 Hydroelectric Project (FERC No. 2175).2 The Commission’s relicensing of the Big Creek Projects has been delayed for well over a decade—and in some instances for nearly 20 years—due in large measure to SWRCB’s consistent annual direction that SCE submit a withdrawal-and-resubmittal letter for the express purpose of attempting to provide SWRCB another year to act on SCE’s WQC requests. SCE originally requested WQC for the Vermilion Valley Project (FERC No. 2086) in 2001, followed by the WQC request for the Portal Project (FERC No. 2174) in 2003. For the remaining four Big Creek Projects—commonly referred to as the Big Creek Alterative Licensing Process (“ALP”) Projects3—SCE filed a consolidated WQC with SWRCB in 2008. 1 33 U.S.C. § 1341. 2 The Big Creek Hydroelectric System also includes the Big Creek No. 4 Hydroelectric Project (FERC No. 2017). The Big Creek No. 4 Project is not included in this Petition because the relicensing proceeding for the project concluded in 2003 with the Commission’s issuance of a new license. See S. Cal. Edison Co., 105 FERC ¶ 62,146 (2003). 3 The Big Creek ALP Projects consist of Big Creek Nos. 2A, 8, and Eastwood (FERC No. 67); Big Creek No. 3 (FERC No. 120); Mammoth Pool (FERC No. 2085); and Big Creek Nos. 1 and 2 (FERC No. 2175). Secretary Kimberly D. Bose Project Nos. 67, et al. Page 2 SCE’s relicensing proposals for each of the Big Creek Projects have remained unchanged since each of the Applications for New License were filed with the Commission. In fact, SCE reached a Relicensing Settlement for the Big Creek ALP Projects before filing its Application for New License and filed the Relicensing Settlement concurrent with the filing of its relicensing application for these projects. Moreover, the Commission long ago completed its environmental review for all the Big Creek Projects, issuing its Final Environmental Assessments for the Vermilion Project and Portal Project in 2004 and 2006, respectively. It issued its Final Environmental Impact Statement for the Big Creek ALP Projects in 2009—over 10 years ago. And despite these environmental analyses and SWRCB’s repeated assurances to SCE that its WQC applications were “complete,” year after year it directed SCE to submit withdrawal-and-resubmittal letters that delayed the federal relicensing processes for these projects. These facts and circumstances, presented in detail in the enclosed Petition, are materially identical to the U.S. Court of Appeals for the D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC and the Commission’s order in Placer County Water Agency.4 Both of these cases involved relicensing proceedings that had long been stalled by SWRCB’s repeated direction to the licensee to engage in the same withdrawal-and-resubmittal scheme present here. And in both instances, the D.C. Circuit in Hoopa Valley Tribe and Commission in Placer County Water Agency held that SWRCB waived WQC authority under CWA Section 401. The relicensing proceedings for the Big Creek Projects have been pending for longer than the projects at issue in those other cases. Therefore, as detailed in the attached Petition, this Petition establishes an even longer record of the unlawful withdrawal-and-resubmittal practice. Moreover, SCE respectfully requests that the Commission grant this Petition expeditiously. Not only does the Petition present a straightforward application of the central holdings of Hoopa Valley Tribe and Placer County Water Agency, SWRCB’s recent actions with respect to the Big Creek Projects ignore its own regulations and contradict its very specific directives to SCE—all in a transparent attempt to evade application of Hoopa Valley Tribe and Placer County Water Agency. On May 31, 2019, SWRCB unexpectedly issued a final WQC for the Big Creek Projects—even though SWRCB had denied WQC without prejudice in November 2018; SCE had no pending WQC application before SWRCB as its regulations allow a full year for SCE to refile following denial without prejudice; and SWRCB violated its own procedural regulations in issuing this spontaneous and ultra vires WQC. To restore clarity and certainty to the relicensing proceedings caused by SWRCB’s rather confusing and unsolicited WQC, expedited consideration is warranted. Otherwise, SWRCB’s action will require SCE to incur unnecessary legal expenses to immediately protect its interests by pursuing state administrative and litigation proceedings related to SWRCB’s action. Rather than forcing SCE and other parties into a prolonged dispute over SWRCB’s unlawful WQC, the Commission should expeditiously exercise its exclusive responsibility to determine that SWRCB’s actions over more than a decade have violated Section 401, and therefore that SWRCB waived authority under Section 401 long before it issued its May 2019 WQC.5 4 Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019); Placer County Water Agency, 167 FERC ¶ 61,056 (2019). 5 Hoopa Valley Tribe, 913 F.3d at 1103 (citing City of Tacoma v. FERC, 460 F.3d 53, 373 (D.C. Cir. 2006); U.S. Const. art. III, § 2, cl. 1)). Secretary Kimberly D. Bose Project Nos. 67, et al. Page 3 To facilitate expedited decision on the Petition, SCE has included in this submittal a draft public notice in Microsoft Word format, which proposes a 15-day intervention and comment period, consistent with the Commission’s recent treatment of another petition for declaratory order related to a waiver of CWA Section 401 authority by SWRCB.6 SCE appreciates the Commission’s consideration of this Petition, which if granted will resolve one of the most significantly delayed relicensing efforts in the nation; allow the Commission to move forward swiftly with the relicensing of the Big Creek Projects; and facilitate SCE’s provision of the immense public benefits that are contemplated under the Applications for New License and Relicensing Settlement for the Big Creek ALP Projects. Sincerely, Charles R. Sensiba Counsel to Southern California Edison Company 6 See Notice of Petition for Declaratory Order, Project No. 606-027 (issued Jun. 6, 2019). UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Southern California Edison ) Project No. 67-__ Company ) Project No. 120-__ ) Project No. 2085-__ ) Project No. 2086-__ ) Project No. 2174-__ ) Project No. 2175-__ PETITION FOR DECLARATORY ORDER OF SOUTHERN CALIFORNIA EDISON COMPANY Pursuant to Rule 207(a)(2) of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (“FERC” or “Commission”),1 Southern California Edison Company (“SCE”) submits this Petition for Declaratory Order (“Petition”), which seeks a Commission order holding that the California State Water Resources Control Board (“SWRCB”) waived authority under Section 401 of the Clean Water Act (“CWA”)2 in the Commission’s pending relicensing proceedings for six of the projects within the Big Creek Hydroelectric System (collectively referred to herein as the “Big Creek Projects”).3 1 18 C.F.R. § 385.207(a)(2). 2 33 U.S.C. § 1341(a)(1). 3 The Big Creek Projects consist of: (1) Big Creek Nos. 2A, 8, and Eastwood Hydroelectric Project (FERC No. 67); (2) Big Creek No. 3 Hydroelectric Project (FERC No. 120); (3) Mammoth Pool Hydroelectric Project (FERC No. 2085); (4) Vermilion Valley Hydroelectric Project (FERC No. 2086); (5) Portal Hydroelectric Project (FERC No. 2174); and (6) Big Creek Nos. 1 and 2 Hydroelectric Project (FERC No. 2175). 1 SCE respectfully requests the Commission to expeditiously rule on this Petition.4 The facts and circumstances in this matter are materially identical to other, very recent orders of the Commission and the U.S. Court of Appeals for the D.C. Circuit holding that SWRCB waived authority under CWA Section 401 by engaging in a prolonged “withdrawal-and-resubmission” scheme with the license applicant,5 rather than acting within the “absolute maximum” one-year period afforded by Section 401.6 Like these other cases, this Petition requires “an undemanding inquiry because Section 401’s text is clear.”7 As detailed below, moreover,8 SWRCB just days ago unexpectedly issued a final water quality certification (“WQC”) for the Big Creek Projects9—an action that not only violates Environmental Protection Agency (“EPA”) guidance10 and SWRCB’s own regulations, but also contradicts SWRCB’s instructions to SCE in its November 16, 2018, letter that denied WQC for the six Big Creek Projects, without prejudice.11 Without 4 To facilitate expedient consideration, SCE has submitted, in Microsoft Word format, a draft public notice of this Petition.
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