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New Era of Hydropower Regulation? Corps of Engineers Agrees to Seek NPDES Permits for Hydro Equipment

August 05, 2014 posted by Eric Christensen

On August 4, in response to a series of lawsuits brought by the environmental advocacy group Columbia Riverkeeper, the U.S. Army Corps of Engineers agreed to regulatory measures aimed at preventing oil leaks from eight dams on the Columbia/Snake River system.

The agreement may be a harbinger of significantly increased regulatory compliance burdens under the Clean Water Act for hydroelectric projects. Apparently sparked by a leak of transformer oil containing PCBs from the Corps' Ice Harbor Dam and several similar incidents, Columbia Riverkeeper last summer filed three citizen suits, later consolidated, under the Clean Water Act. Asserting that oil spills constitute a regulated "point source," the lawsuits sought to force the Corps of Engineers to obtain NPDES permits to regulate potential leaks and spills of oil into the River. In a settlement agreement submitted to the federal court yesterday, the Corps agrees to: 1. Apply for NPDES permits to address potential discharges of pollutants from a number of different facilities at the eight affected dams, including powerhouse drainage sumps, unwatering sumps, navigation lock sumps, wicket gate bearings, turbine blade packings and seals, and cooling water systems. This goes well beyond existing practice, where NPDES permits are in place or have been sought only for limited facilities at Bonneville and The Dalles Dams. 2. The Corps will notify defendants of spills reported under the Spill Prevention, Control and Countermeasure plan ("SPCC") for each of the dams until NPDES permits are issued. SPCCs are currently in place, but the settlement agreement adds the requirement that the Corps report include notification to Columbia Riverkeeper of any spills reported under those SPCCs during the period when the NPDES permits are pending. 3. The Corps will evaluate expanded use of Environmentally Acceptable Lubricants, as defined by EPA, if an Environmentally Acceptable Lubricant can be substituted for an existing use without risk of damage to Corps equipment. It is important to note that the Corps will be seeking NPDES permits only for specific facilities where oil may leak or be added to the water. Thus, the settlement agreement preserves the long-standing doctrine that dams are not "point sources" that require a Clean Water Act permit where they simply impound water, and no additional pollutants are added to the impounded water. Nonetheless, the plaintiff's success in this case suggests that other dams around the Pacific Northwest may soon face similar pressure to obtain NPDES permits for dam-related equipment such as turbines, wicket gates, and sumps where oils required to lubricate or cool equipment could be discharged into the water.

If you have any questions about the settlement agreement discussed here, hydroelectric power, environmental regulation and permitting, or other matters involving energy or environmental law, please contact a member of CH&'s Energy & Clean Tech team.