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NW Fishletter #394, June 3, 2019

[7] Columbia Riverkeeper Answers EPA's Appeal, Files New Lawsuits

A conservation group that has been using the Clean Water Act and National Pollutant Discharge Elimination System (NPEDS) to fight for cleaner and cooler water in the Columbia River has filed two new lawsuits--one against Grant County PUD in March and another against the U.S. Army Corps of Engineers in April.

Columbia Riverkeeper filed the lawsuits in U.S. District Court over the discharge of oil and other lubricants at three Columbia River hydroelectric projects.

On May 10, the group also filed a response with other plaintiffs, to the Environmental Protection Agency's appeal in the 9th U.S. Circuit Court of Appeals of a lower court order that requires the federal agency to come up with a plan to deal with higher water temperatures in the Columbia and Snake rivers.

These are among a series of legal actions that could ultimately clarify some requirements under the Clean Water Act, including whether federal agencies and public utility hydroelectric projects must obtain a NPDES permit for spills and operational leaking of oil or other lubricants, and whether the EPA must develop water quality clean-up plans when states do not.

Riverkeeper's efforts to require the pollution discharge permits at Columbia River dams date back to 2013, when the group filed a series of lawsuits in U.S. District Court against the U.S. Army Corps of Engineers and the Bureau of Reclamation over regular leaking of oil and other lubricants from operating nine dams.

The cases were dismissed when the federal agencies agreed in an August 2014 settlement to address "alleged discharges from powerhouse drainage sumps, unwatering sumps, spillway sumps, navigation lock sumps, wicket gate bearings, turbine blade packing/seals, and discharges of cooling water systems, at each of the dams."

Without admitting that the discharges equate to pollution under the Clean Water Act, the agencies agreed to apply to EPA or the Oregon Department of Environmental Quality for discharge permits at each dam; to assess whether the use of "environmentally acceptable lubricants" can be used without risk of damage to equipment; and to switch to those lubricants when feasible.

They also agreed to ask for updates on the permit applications every year, and to notify Columbia Riverkeeper of any spills that are reported to the National Response Center as part of its spill prevention plan.

While the settlement focused on lubricant discharges and oil spills, it triggered an examination of water temperature issues at the dams when EPA asked the Washington Department of Ecology for 401 Water Quality Certifications, which are needed to obtain a NPDES permit. Ecology was in the midst of gathering public comments for the certifications when EPA withdrew its request in February, saying it needed more review, and that it plans to resubmit its application after further analysis.

Comments that were received before EPA withdrew the request included numerous appeals for changes in dam operations to reduce temperature and enhance fish survival.

After winning a settlement with the federal agencies, Columbia Riverkeeper notified three Mid-C PUDs in September of its intent to file lawsuits against them for also failing to have a NPDES permit for similar lubricant discharges.

The group sued the Douglas County PUD in December. The PUD claims that the pollution discharge permit is unnecessary because Ecology has already issued a water quality certification permit for Wells Dam.

The Chelan County PUD settled with Columbia Riverkeeper in March, before a lawsuit was filed. The PUD agreed to obtain the permit, monitor and reduce harmful lubricants, and will spend $105,000 to improve water quality in areas around its Rocky Reach and Rock Island projects.

On March 26, Riverkeeper filed a similar suit against the Grant County PUD for discharges at Priest Rapids and Wanapum dams. In its reply, the PUD also denies that they are in violation of the Clean Water Act, saying that, pursuant to its Federal Energy Regulatory Commission (FERC) license, the projects have a state-issued water quality certification, and are "in conformance with all applicable water quality-based, technology-based, toxic, and pretreatment effluent limitations."

On April 15, Riverkeeper filed suit against the Corps for discharges at Chief Joseph Dam, which was not one of the dams in the prior settlement with Riverkeeper. The agency has not yet filed a response, and an agency spokesman declined to comment on the lawsuit.

Both new lawsuits say the operations violate the Clean Water Act with "unpermitted discharges of pollutants" by failing to obtain a NPDES permit, which the group claims is required for the projects' release of oils, greases, lubricants and "cooling water and the heat associated therewith."

They ask the judge for injunctions to prevent the Corps and the PUD from discharging pollutants from the dams until they receive NPDES permits, and to require actions to evaluate and remediate the environmental harm.

Riverkeeper and four other conservation groups are also using the Clean Water Act to push the EPA into issuing TMDLs--total maximum daily loads--for temperature in the Snake and Columbia rivers. EPA appealed the lower court ruling in the 9th U.S. Circuit Court of Appeals.

Riverkeeper responded to its arguments in a May 10 filing, along with Idaho Rivers United, Snake River Waterkeeper, Pacific Coast Federation of Fishermen's Associations, and the Institute for Fisheries Resources.

Their argument says that the district court correctly found that Washington and Oregon had abandoned their duty to submit the TMDL, triggering EPA's "nondiscretionary" duty to prepare and submit the TMDL instead. TMDLs identify the sources of pollution--in this case temperature. They calculate the level of permissible pollution and allocate daily limits from each source.

Under the Clean Water Act, states are given the duty to issue TMDLs, but--Riverkeeper argues--in an agreement with Washington and Oregon, EPA agreed to issue temperature TMDLs for the Snake and Columbia rivers due to the complexity and multi-jurisdictional nature of the rivers.

The reply says the EPA already released a preliminary draft TMDL for temperature in 2003, identifying dams on the mainstem Columbia and lower Snake rivers as the most significant contributors to water quality exceedances. "Dams affect water temperature by altering upstream river flow, geometry, and velocity," the filing states. It says the draft indicates that the EPA planned to issue an updated TMDL for public comment, but by 2004 it "quietly abandoned work" on it, the reply said.

It argues there is no factual dispute that the states have abandoned their duty to prepare the TMDL, leaving that duty to the EPA.

Riverkeeper argues that the "rigor, accountability, and statutory authority" of the Clean Water Act is long overdue in the Columbia and Snake Rivers, which have been on the impaired waters list for temperature since 1998. "Without the TMDL, excessive water temperatures have worsened to the point where they have caused significant fish kills and pushed threatened and endangered salmon and steelhead closer to extinction."

It asks the court to uphold the U.S. District Court decision and require the EPA to complete the temperature TMDL. -K.C. Mehaffey

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NW Fishletter is produced by NewsData LLC.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
Phone: (206) 285-4848 Fax: (206) 281-8035

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