The Washington State Pollution Control Hearings Board has indicated it will rule the state's Department of Ecology can require the U.S. Army Corps of Engineers to adhere to water temperature standards at its four lower Columbia River and four lower Snake River dams.
In a June 28 letter to parties in U.S. Army Corps of Engineers v. State of Washington, Department of Ecology [P20-043c], Board Chair Neil Wise wrote that the board will be issuing an order granting motions for partial summary judgment in favor of Ecology and four environmental groups that intervened on six of the nine issues raised by the Corps in its appeal. The letter also said PCHB will deny a motion for summary judgment by the Corps on all nine issues.
"This letter does not constitute the Board's final decision and order on the parties' motions, which will be issued at a later date," the letter said in bold writing, adding that the letter is not appealable or subject to reconsideration.
In June 2020, the Corps appealed Ecology's water quality certifications, issued when the federal agency applied for National Pollutant Discharge Elimination System permits for the eight dams as agreed to in a court settlement. The certifications imposed numerous conditions, including efforts to meet water temperature standards. Ecology said the requirements are similar to those at other hydroelectric projects in the state.
The letter indicates that PCHB agrees Ecology has the authority to impose conditions at the eight dams even if they interfere with the Corps' ability to operate and maintain the dams for multiple purposes as authorized by Congress. Ecology can also require the Corps to undertake strategies to meet water temperature standards, meet total dissolved gas standards, deal with issues related to cooling water intake structures and unilaterally modify the certifications, the letter indicated.
Legal issues that have not been decided are scheduled for a preliminary hearing Aug. 9-17, and include conditions over best management practices and use of adaptive management; the feasibility of using environmentally acceptable lubricants; and the review and approval of a polychlorinated biphenyls management plan.
Environmental groups applauded PCHB's letter.
"Today's announcement is a significant step toward holding the Army Corps accountable for the heat pollution caused by its dams and reservoirs," Columbia Riverkeeper's Executive Director Brett VandenHeuvel said in a news release.