On November 22, 2019, the Army Corps of Engineers (Corps) agreed to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the operation of the federally owned and operated Chief Joseph Dam, the second-largest hydropower producing dam in the United States, as part of a settlement with the Columbia Riverkeeper. The settlement resolves litigation (previously addressed on this blog) brought by the Columbia Riverkeeper, which claimed that the Corps’ dam operations had long been discharging oil, grease, and heated water into the Columbia River without a permit.
Sections 301(a) and 402 of the Clean Water Act (CWA) prohibit anyone, including a federal agency, from discharging “pollutants” through a “point source” into a “water of the United States” except as authorized by a NPDES permit. Section 505 of the CWA provides any citizen, including a citizen group like Columbia Riverkeeper, the ability to bring a civil action against any person, including the United States, that is violating an effluent standard or limitation. As detailed by its complaint, the Columbia Riverkeeper alleged that the Corps has been in violation of CWA standards by allowing oils and grease to accumulate in sumps that drain into the river and utilizing hydro-carbon based lubricants on generation equipment that become discharged with cooling water without a NPDES permit.
The Columbia Riverkeeper asked the U.S. District Court of the Eastern District of Washington to compel the Corps to obtain a NPDES permit that would place limits on the dam’s ability to discharge these pollutants into the river. According to the Riverkeeper, such discharge restrictions are particularly important in the Columbia River Basin as the Environmental Protection Agency (“EPA”) has designated the area as a Critical Large Aquatic Ecosystem due to the presence of toxic chemicals that are found in the local fish and continue throughout the food chain.
Under the terms of the settlement, the Corps will apply for a NPDES permit by March 27, 2020. Moreover, the Corps will complete an assessment and issue a report addressing whether it is feasible to switch from using grease as a lubricant on certain “in-water” dam components to a more environmentally “friendly” lubricant that meets industry standards for biodegradability, toxicity, and bioaccumulation.
Longstanding precedent maintains that because dam-induced changes to water quality do not involve an addition of a pollutant to navigable waters, NPDES permitting is not required for dam operations. National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982); National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988); accord Los Angeles Flood Control District v. Natural Resources Defense Council, 568 U.S. 78 (2013). The settlement reached by the Corps and Columbia Riverkeeper appears to adhere to this precedent, as the discharge of oil, grease, and heated water involves the addition of pollutants from the outside world. See, e.g., South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 491-93 (2d Cir. 2001) (explaining that “a ‘point source must introduce the pollutant into navigable water from the outside world[,]’ . . . [that is,] any place outside the particular body of water to which pollutants are introduced.”) (quoting Gorsuch, 693 F.2d at 165). However, the settlement could increase efforts to require NPDES permitting of similar discharges from both federal and non-federal dams, such as EPA’s proposed NPDES general permits for hydropower projects in Regions 1 and 10.