Columbia Riverkeeper resurrected a lawsuit against the U.S. Army Corps of Engineers that was settled more than seven years ago, noting that the National Pollutant Discharge Elimination System permits that the Corps agreed to apply for still have not been issued for the four lower Columbia River dams.
Filed Dec. 8 in U.S. District Court for the Eastern District of Washington, Columbia Riverkeeper v. U.S. Army Corps of Engineers et al. [21-5152] asks the court to issue an injunction preventing the Corps from discharging pollutants until authorized by NPDES permits, and requiring them to take actions to evaluate and remediate any environmental harm caused by violations.
Water temperature increases caused by pooled water in the reservoirs of Bonneville, The Dalles, John Day and McNary dams are indirectly implicated by the complaint, but not directly impacted by Riverkeeper's requested relief.
The suit does mention the issue of the dams' impact on temperature problems in the lower Columbia River, including the 2015 die-off of an estimated 277,000 sockeye, which represented about 55 percent of the total run that year. It also states that this summer, heat pollution from the dams caused sockeye to sicken and die prematurely.
"Salmon are dying because the water is too hot," Riverkeeper's Executive Director Brett VandenHeuvel said in a news release announcing the lawsuit. "It's past time for the Army Corps to reduce illegal heat pollution from dams."
In a prepared statement, the Corps responded, "To dispel misinformation, USACE notes that Columbia Riverkeeper's press release does not accurately describe our ability to manage water behind the dams in the lower Columbia River. Although the pools behind the lower Columbia River dams are considered reservoirs, they are largely not storage reservoirs, but rather run-of-river facilities. This limits our ability to impact water temperatures by drawing down water levels in the spring."
The Corps' statement also notes that the agency applied for the NPDES permits in 2015.
"We take our Clean Water Act obligations seriously. Our team is working tirelessly to find solutions that balance all of the purposes of the system, including the needs of fish and wildlife, flood risk management, navigation, power generation, recreation, water supply and water quantity," the statement said.
Under the 2014 settlement, the Corps agreed to apply for NPDES permits for the lower Snake and lower Columbia river dams, while Riverkeeper agreed to refrain from further litigation against the Corps on the NPDES issue for seven years. NPDES permits were issued for the four Snake River dams, but permits for the four lower Columbia River dams have been held up since May 2020, when Oregon objected to EPA's proposed permits (CU No. 2024 [14]). Agreement from both Washington and Oregon is needed before permits for the Columbia River dams are issued as that stretch of river borders both states.
Riverkeeper's lawsuit focuses mostly on oil and lubricant leaks from the dams, and the small amount of heat generated through cooling of dam components such as turbines, generators and transformers.
It notes that in 2009, EPA released an in-depth report on toxic pollution in the Columbia River, concluding that harmful pollutants are moving up the food chain, impacting people, fish and wildlife. A study by the Columbia River Inter-Tribal Fish Commission found 92 toxic chemicals in fish consumed by tribal members, including PCBs, dioxins, arsenic, mercury and DDE—a product of the breakdown of DDT. It says the four dams contribute to that problem through daily discharges of oils, greases and other lubricants used to control turbines, lubricate turbine wickets and maintain sumps in the dams' powerhouses, navigation locks and other systems.
The lawsuit does not ask the court to directly address the issue of heat generated by the added heating of reservoirs due to increased surface area, which is addressed in EPA's recently released total maximum daily loads. However, the NPDES for the Snake River dams requires the Corps to meet wasteload allocations outlined in the TMDLs.
This lawsuit seeks to compel the Corps to discontinue unpermitted discharges of pollutants from the dams until the Corps obtains NPDES permits authorizing discharges, with pollutants defined as oils, greases, lubricants and the heat from cooling water. It notes that water quality certifications, which can include water temperature requirements, become conditions of the NPDES permits.
The Corps has argued that the Washington Department of Ecology's water quality certification is limited to the point sources outlined in an NPDES permit, such as oil leaks, but not nonpoint sources like the increased temperature caused by pooled water.
So far, the Washington State Pollution Control Hearings Board has agreed with Washington Department of Ecology on the issue, but three legal issues remain in the Corps' appeal of Ecology's water quality certifications (CU No. 2031 [9]).
Kurt Miller, executive director of Northwest RiverPartners, questioned why Riverkeeper would file its lawsuit against the Corps, even though it is EPA's job to issue the NPDES permits and Oregon has held up the process through its objection.
"As a region, we keep saying we don't want to be in court all the time, yet it seems at every opportunity—even before there's an opportunity to address the issues—people go to court," he told Clearing Up.
He added that the bigger issue is whether the Corps can actually address temperature exceedances within the water standards established by Washington and Oregon.
"One of the things we asked before is, are the dams being set up to fail? If you have a temperature standard that is essentially unachievable, it creates a concern, especially because downstream temperatures are going to be higher whether the dams are in place or not. So, if upstream temperatures are already too hot, what are the chances that downstream temperatures could be below them?" he asked.
