The question of whether Washington state can require federal agencies to address increases in water temperature caused by reservoirs at federal hydroelectric dams is shaping up to become a potential legal battle.
Conservation and fishing groups have asked to intervene in the U.S. Army Corps of Engineer's appeal of Washington state's water quality certifications for eight federal dams on the lower Snake and Columbia rivers. Those certifications require the Corps to resolve water temperature issues caused by the dams. Columbia Riverkeeper, Northwest Sportfishing Industry Association and Natural Resources Defense Council filed the motion July 29 to intervene in the case before the Washington Pollution Control Hearings Board.
Columbia-Snake River Irrigators Association is considering whether to join the Corps' side by filing an amicus brief in the case, CSRIA board representative Darryll Olsen told NW Fishletter. CSRIA also sent a letter to the Environmental Protection Agency and the Corps suggesting the federal government has "ample authority" under the Endangered Species Act and the Clean Water Act to end the legal battle through an Endangered Species Act exemption that would remove the federal dams from endangered species requirements.
A trial-like hearing on the Corps' appeal is more than a year away—set for Aug. 9-17, 2021.
The issue is over water temperature—a problem for salmon, steelhead and other aquatic life once temperatures exceed 68 degrees Fahrenheit.
"For weeks and sometimes months at a time, the water behind the Lower Snake River dams is too hot for salmon, and summers in the Pacific Northwest are only getting hotter," Giulia Good Stefani, senior attorney for NRDC, said in a news release. "The Army Corps must manage the dams to reduce water temperatures. If they don't, we are all cooked: the fish, plus everything and everyone in the region that depends on salmon."
Water temperatures at most of the eight dams in the lower Snake and Columbia rivers are now exceeding the 68 F temperature standard most days. According to Save Our Wild Salmon's weekly Hot Water Report, only Lower Granite Dam—kept cool by releases of cooler water from Dworshak Dam—has not exceeded 68 F this summer. Using temperature data from the U.S. Geological Survey, the report shows all four lower Columbia River dams exceeded the standard at least six days in the week from July 23-29. Ice Harbor and John Day dams exceeded standards all seven days, and John Day Dam registered the highest temperature, at 70.7 F, it said.
The water temperature issue in the Snake and Columbia rivers involves three major documents, all issued recently, and all interrelated.
On March 18, the Environmental Protection Agency issued draft National Pollutant Discharge Elimination System permits for the eight dams as the result of a 2014 court settlement in U.S. District Court, when the Corps agreed to apply for pollution discharge permits for the eight dams from EPA.
The draft NPDES triggered EPA to request water quality certifications from Washington State Department of Ecology under Section 401 of the Clean Water Act. On May 7, Ecology issued the final 401 certifications. Those certifications—the subject of the Corps' appeal—require the Corps to monitor for temperature at most outfalls, and submit a water quality attainment plan to Ecology for approval. It requires the Corps to "implement temperature control strategies and meet the load allocations in the Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load once issued."
On May 18, EPA released the TMDL, which is still open for public comment through Aug. 20.
In addition to these filings, Oregon Department of Environmental Quality issued an objection letter to the NPDES permits for the four lower Columbia dams, where both Oregon and Washington oversee water quality standards. The agency determined discharges from the dams will affect Oregon's water quality—including temperature—and has requested a public hearing with EPA.
The letter states Bonneville Dam annually exceeds the 20 degrees Celsius (68 degrees Fahrenheit) standard for an average of 54 days, The Dalles exceeds it for 58 days, John Day for 59 days and McNary for 48 days, based on average forebay temperatures from 2010 through 2019. "DEQ expects EPA to incorporate any necessary conditions for TMDL implementation associated with the dams into the NPDES permits," the objection letter states.
CSRIA—in its letter to the EPA and the Corps—says the roots of the Corps' problems date to the settlement agreement in which the Corps agreed to apply for NPDES permits for the dams, even though the dams do not discharge pollutants in the same way that is generally interpreted under the Clean Water Act.
And now, it says, the Corps is letting a state court determine whether and to what extent it can continue to manage the eight main stem dams for multiple congressionally authorized purposes.
"Putting these questions before a hostile state administrative tribunal threatens to generate precedent that will be used in the ongoing case before the U.S. District Court in Oregon to force dam removal," the letter says, later adding, "It is long past time for the Corps and the EPA to reaffirm that federal hydroelectric projects authorized decades before the Clean Water Act do not require permits for continued operations pursuant to that Act, allowing federal project operations to be shut down at the whim of state tribunals."
Ecology's water quality certifications marked the first time the state has tried to exercise authority over water temperature issues at federal hydroelectric projects.
In its appeal before the PCHB, the Corps says Ecology's certifications conflict with its ability to manage projects for multiple purposes. "The Corps acknowledges the important State role in issuing certifications, but cannot accept those conditions that conflict with Congress' intent in authorizing the Corps to construct and operate these multi-purpose projects on the mainstem of the Lower Columbia and Snake Rivers," its appeal says.
The appeal also says Ecology's 401 certification regulates aspects of the dam and reservoir projects as a whole, instead of just discharges from the projects' activities, which is the purpose of a NPDES permit.
In their motion to intervene, conservation groups do not get into these issues. But they state that all the groups support the water quality certifications for many reasons, and wish to intervene to defend Ecology's 401 certifications for the hydroelectric facilities.
"Proposed intervenors have concluded that human impacts, primarily the creation of large, relatively shallow reservoirs, the operation and configuration of federal dams on these rivers, and advancing climate change, result in summer water temperatures that are detrimental to salmon and steelhead migration and survival," the motion states.
It also points to sockeye salmon losses in 2015, when, according to the Fish Passage Center, more than 96 percent of returning endangered Snake River sockeye salmon died prematurely due to warm water conditions. "Without action to address water temperatures, similar fish kills have and will likely continue to re-occur in the future. As EPA has acknowledged, '[t]he need to lower water temperature becomes more critical as the Pacific Northwest Region continues to address and mitigate climate change," it says.
The motion focuses on reasons why the groups are entitled to intervene, including their timely application for intervention, their interest in the action, the potential for their interests to be impaired as a result of the appeal, and the fact no other parties in the case adequately represent their interests.