the film


Commentaries and editorials

Not So Fast! Oregon DEQ Objects to EPA's Draft
NPDES Permits for Lower Columbia River Dams

by Richard Glick and Olivier Jamin
JD Supra, May 20, 2020

By slowing the flow and increasing the surface area exposed to the sun,
the dams cause the Snake River to increase as much as 5.7 degrees.

Graphic: Temperatures in the Lower Snake River regularly exceed Clean Water Act standards.  In 2014, 99% of Idaho's Sockeye adults failed to return to their natal lakes.  The thermal block from the Snake River, caused the death of most Canada bound Sockeye as well. On May 15, 2020, the Oregon Department of Environmental Quality (DEQ) submitted a letter to the Environmental Protection Agency (EPA) in which it objected to EPA's draft water quality discharge permits (NPDES permits) relating to four federal dams on the Lower Columbia River. The dams in question are Bonneville, The Dalles, John Day, and McNary. The U. S. Army Corps of Engineers (USACE) operates the dams, which are key elements of the Federal Columbia River Power System (FCRPS).

Section 402 of the Clean Water Act (CWA) requires a NPDES permit for discharges of pollutants from "point sources." A point source is a defined conveyance for direct discharges of pollutants, like a pipe. Courts have considered dams to be nonpoint sources that do not require permits, as dams typically do not add pollutants, but merely pass upstream pollutants through their spillways. However, dams with hydroelectric facilities often discharge oily waste from onsite transformers, which could include PCBs.

On that basis, EPA has determined that each of the four Lower Columbia dams requires a NPDES permit to cover the direct discharges resulting from power operations. EPA specifically did not address indirect discharges through the spillways or turbines.

Section 401(a)(2) requires that EPA notify states whose water quality may be affected by the permits, including Oregon. In its letter, DEQ notes that although the NPDES permits do not address pass-through pollutants, section 401 allows DEQ to consider potential violations of any water quality parameter resulting from total dam operations. DEQ therefore objects to the permits and requests imposition of certain conditions to meet numeric and narrative temperature criteria, total dissolved gas (TDG) levels, biocriteria, and toxics substances criteria.

For temperature, DEQ would require a temperature management plan with adaptive management elements to address a yet-to-be-developed Total Maximum Daily Load (TMDL). As expected, on May 18, 2020, EPA initiated the process for establishing a TMDL for temperature in the Columbia and Lower Snake Rivers. We will be tracking this process and reporting in future posts.

For total dissolved gas, DEQ requests that EPA require the USACE to implement additional monitoring measures to increase compliance with the existing TDG TMDL through adaptive management. With regard to biocriteria, DEQ is asking USACE to allow the use of best technology available (BTA) or Oregon Department of Fish and Wildlife (ODFW) recommended technology to reduce fish entrainment and impingement. If the technology implemented does not reduce impingement, USACE would be required to develop an adaptive management plan and submit it to DEQ for approval. Finally, DEQ would require additional measures to reduce PCB discharges from each project to ensure compliance with Oregon toxics substances criteria.

DEQ's objection letter is the latest development in a long-running dispute involving the effects of FCRPS operations on salmonid species listed under the Endangered Species Act (ESA). Oregon is an intervenor plaintiff in a lawsuit brought by the National Wildlife Federation alleging that the 2014 Biological Opinion, and later iterations, violated the ESA.

Under the Clean Water Act, EPA will now be required to hold a hearing to address DEQ's objections and requests. By extending its section 401 authority to the FCRPS saga, DEQ has raised the bar for the seemingly endless tension between the benefits and consequences of this massive public power system, which was established in an era preceding our organic conservation statutes. It has been a bumpy ride and will continue to be for the foreseeable future.

Portland, OR -- Statement from DEQ Director Richard Whitman

"Today ODEQ submitted a letter to the U.S. Environmental Protection Agency objecting to EPA's recently released draft water quality permits (known as NPDES permits) for four federally operated dams on the Lower Columbia River. DEQ objected to the lack of requirements to address the dam operations effects on temperature and total dissolved gas levels in the Columbia River. Under Section 401(a)(2) of the Clean Water Act, EPA is required to hold a hearing to address DEQ's objections. Oregonians want and expect protections that ensure safe and healthy water in the Columbia River. Oregon DEQ intends to continue using its authorities to ensure water quality is protected in the Columbia."

-Richard Whitman, Director

Related Sites:
Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load by State of Oregon Department of Environmental Quality, 5/15/2020
Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load by State of Washington Department of Ecology, 5/7/2020

Related Pages:
For First Time, Federal Dam Operators Must Make Water Temperature Control Plan by Mallory Gruben, The Daily News, 5/13/20
Columbia, Snake River Dam Operators Must Make Plan to Keep Waters Cold Enough for Salmon Survival by Jeremy P. Jacobs, E&E News, 3/30/20
Court Orders EPA to Write Temperature Control Plans for Columbia, Snake by George Plaven, Capital Press, 12/27/19
Federal Court Ruling Expected to Affect Salmon Conservation by Associated Press, Lewiston Tribune, 12/27/19
Federal Appeals Court Pins EPA with Responsibility for Snake, Columbia River Plan by Eric Barker, Lewiston Tribune, 12/21/19
Federal Appeals Court Orders EPA to Create Plan to Lower Water Temperatures on Columbia River by Evan Bush, Seattle Times, 12/20/19
Court says EPA Must Regulate River Temperatures for Fish by Jeremy P. Jacobs, E&E News, 12/20/19

'It's Just Not Working': Republican Slams Salmon Regime by Jeremy P. Jacobs, E&E News, 3/11/20
Snake River Dam Removal: Idaho Congressman Makes the Case to Save Salmon by Ben Long, Outdoor Life, 4/30/19
An Idaho Republican is Asking the Right Questions About Northwest Salmon by Tom France, Crosscut, 4/29/19
Leaders React to Dam Breaching Comments by Eric Barker, Lewiston Tribune, 4/27/19
Simpson Stops Short of Calling for Dam Removal to Save Salmon. But He Is Asking, 'What If?' by Rocky Barker, Idaho Statesman, 4/25/19
Congressman Mike Simpson says He's Determined to See Fish Runs Recovered in His Lifetime by Eric Barker, Lewiston Tribune, 4/25/19
'I Want Salmon Back in Idaho.' Simpson Seeks Bold Action After $16 Billion Spent on Recovery by Cynthia Sewell, Idaho Statesman, 4/23/19

Richard Glick and Olivier Jamin, of Davis Wright Tremaine LLP, a national law firm with offices in Seattle, Bellevue, San Francisco, Los Angeles, New York City, Washington D.C., Portland, and Anchorage.
Not So Fast! Oregon DEQ Objects to EPA's Draft NPDES Permits for Lower Columbia River Dams
JD Supra, May 20, 2020

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