On April 15, 2019, the environmental group Columbia Riverkeeper (Riverkeeper) filed suit against the U.S. Army Corps of Engineers (Corps) in the U.S. District Court for the Eastern District of Washington, alleging that the Corps’ operation of the Chief Joseph Dam is in violation of the Clean Water Act (CWA). Riverkeeper’s complaint raises important questions as to whether certain discharges from hydropower facilities trigger the need for an authorization under the National Pollutant Discharge Elimination System (NPDES) pursuant to section 402 of the CWA, 33 U.S.C. § 1342.
In the complaint, which was brought under the citizen suit provision of the CWA (section 505), Riverkeeper alleges that the Corps is in violation of sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342, by discharging pollutants from the Chief Joseph Dam without a NPDES permit authorizing the discharges. Section 301(a) of the CWA prohibits the discharge of any pollutant by any person unless authorized by a NPDES permit issued pursuant to section 402 of the CWA. Section 502 of the CWA defines “discharge of a pollutant” to include “any addition of any pollutant to navigable waters from any point source,” and defines “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”
Riverkeeper’s complaint seeks declaratory and injunctive relief to compel the Corps and its Commanding General and Chief of Engineers to comply with sections 301(a) and 402 of the CWA by discontinuing unpermitted discharges without a NPDES permit. It maintains that the Corps’ operation of the Chief Joseph Dam results in the discharge of pollutants, including oils, greases, and other lubricants that collect from various sources at the dam through sumps and other systems, as well as cooling water and its associated heat, into the Columbia River. It describes the dam’s Francis turbines and wicket gates, which it alleges discharge grease and other lubricants to the Columbia River. In 2018, EPA Regions 1 and 10 developed draft General Permits for the states of Massachusetts and New Hampshire in Region 1 and Idaho in Region 10. The draft permits would apply to hydroelectric generating facilities and would require NPDES permits for discharges of the same type covered by Riverkeeper’s complaint, including cooling water, equipment and flood drain water, and water contaminated with maintenance-related materials. See Draft NPDES General Permits for Hydroelectric Generating Facilities in Massachusetts and New Hampshire, 83 Fed. Reg. 42,118 (Aug. 20, 2018) and Proposed Issuance of NPDES General Permit for Hydroelectric Facilities Within the State of Idaho (IDG 360000), 36 Fed. Reg. 18,555 (April 27, 2018). Riverkeeper alleges that the Corps’ failure to obtain a NPDES permit for those discharges “has deprived Columbia Riverkeeper of information that would be required by the permit’s monitoring and reporting conditions” and would be publicly available.
The complaint also details large-scale water quality problems occurring in the Columbia River, including the EPA’s 2006 designation of it as a Critical Large Aquatic Ecosystem due to toxic contamination; a 2009 report demonstrating the presence of harmful pollutants moving up the food chain in fish, wildlife, and humans; and the Columbia River Intertribal Fish Commission, which was tasked by the EPA with studying contaminant levels in fish caught at traditional fishing sites. Riverkeeper contends that the pollution it alleges is discharged from Chief Joseph Dam contributes to the River’s contamination. If the Court agrees, it would pave the way for the finalization of EPA’s proposed general permits in Regions 1 and 10, as well as other regions with extensive hydropower development. Riverkeeper’s complaint, along with the proposed general permits, would have far-reaching implications for developers and operators of hydropower facilities, which are already subject to a myriad of statutory and regulatory requirements.