Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 1 of 19
`
`Brian A. Knutsen, OSB No. 112266
`Emma A. O. Bruden, OSB No. 163525
`KAMPMEIER & KNUTSEN PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`Telephone: (503) 841-6515 (Knutsen)
`
` (503) 719-5641 (Bruden)
`Email: brian@kampmeierknutsen.com
`emma@kampmeierknutsen.com
`
`
`Erin Saylor, OSB No. 085725 (admission application forthcoming)
`COLUMBIA RIVERKEEPER
`1125 SE Madison Street, Suite 103A
`Portland, Oregon 97214
`Telephone: (541) 399-4775
`Email: erin@columbiariverkeeper.org
`
`Attorneys for Plaintiff Columbia Riverkeeper
`
`
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`PENDLETON DIVISION
`
`
`
`
`COLUMBIA RIVERKEEPER,
`
` Plaintiff,
`
` v.
`
`PERENNIAL POWER HOLDINGS, INC.;
`and PERENNIAL-WINDCHASER, LLC,
`
` Defendants.
`
`
`
`
`
`
`Case No. 2:20-cv-2256
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
`
`(Pursuant to Clean Water Act,
`33 U.S.C. § 1365(a)(1))
`
`I.
`
`INTRODUCTION
`
`1.
`
`This action is a citizen suit brought under section 505 of the Clean Water Act
`
`(“CWA”) as amended, 33 U.S.C. § 1365. Plaintiff, Columbia Riverkeeper (Riverkeeper), seeks
`
`declaratory and injunctive relief, the imposition of civil penalties, and the award of costs,
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 2 of 19
`
`including attorneys’ and expert witness’ fees, for defendants Perennial Power Holdings, Inc. and
`
`Perennial-WindChaser, LLC’s (collectively, “Perennial”) discharges of pollutants to waters of
`
`the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit
`
`in violation of the CWA.
`
`II.
`
`JURISDICTION AND VENUE
`
`2.
`
`This Court has jurisdiction under 33 U.S.C. § 1365 (CWA citizen suit provision)
`
`and 28 U.S.C. § 1331 (federal question). Perennial is in violation of an “effluent standard or
`
`limitation” as defined by section 505(f) of the CWA, 33 U.S.C. § 1365(f). The requested relief is
`
`proper under 28 U.S.C. §§ 2201 and 2202 and 33 U.S.C. §§ 1319 and 1365.
`
`3.
`
`In accordance with section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A),
`
`Riverkeeper notified Perennial of the CWA violations alleged herein and of Riverkeeper’s intent
`
`to sue under the CWA for those violations by letter dated and postmarked October 20, 2020
`
`(“Notice Letter”). A copy of the Notice Letter is attached to this complaint as Exhibit 1. In
`
`accordance with section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), and 40 C.F.R.
`
`§ 135.2(a)(1), Riverkeeper provided copies of the Notice Letter to the Administrator of the
`
`United States Environmental Protection Agency (“EPA”), the Administrator of EPA Region 10,
`
`the Director of the Oregon Department of Environmental Quality (“DEQ”), and Perennial’s
`
`register agents by mailing copies to these individuals on October 20, 2020.
`
`4.
`
`As of the filing of this complaint, more than sixty days have passed since
`
`Riverkeeper mailed the Notice Letter as described in the preceding paragraph.
`
`5.
`
`Neither the EPA nor the DEQ has commenced any action constituting diligent
`
`prosecution to redress these violations. Specifically, neither EPA nor DEQ has commenced a
`
`civil or criminal action in a court of the United States or of a State to enforce against the
`
`COMPLAINT – 2
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 3 of 19
`
`violations alleged herein. See 33 U.S.C. § 1365(b)(1)(B). Further, while DEQ has issued an
`
`administrative penalty to Perennial, that penalty was issued after Riverkeeper issued the Notice
`
`Letter and this complaint is being filed less than 120 days after the Notice Letter was issued. See
`
`33 U.S.C. 1319(g)(6)(B).
`
`6.
`
`Perennial’s violations of the CWA alleged herein are ongoing because, as of the
`
`filing of this complaint, the violations are continuing to occur and/or are reasonably likely to
`
`recur.
`
`7.
`
`Venue is appropriate in this District under section 505(c)(1) of the CWA, 33
`
`U.S.C. § 1365(c)(1), because the source of the violations complained of is located in this District,
`
`in Umatilla County, Oregon.
`
`8.
`
`A copy of this complaint will be served on the Attorney General of the United
`
`States, the Administrator of the EPA, and the Administrator of EPA Region 10 as required by
`
`section 505(c)(3) of the CWA, 33 U.S.C. § 1365(c)(3), and 40 C.F.R. § 135.4.
`
`III.
`
`PARTIES
`
`9.
`
`Plaintiff Riverkeeper is suing on behalf of itself and its members. Riverkeeper is a
`
`501(c)(3) non-profit corporation registered in the State of Washington. The mission of
`
`Riverkeeper is to restore and protect the water quality of the Columbia River and all life
`
`connected to it, from the headwaters to the Pacific Ocean. To achieve these objectives,
`
`Riverkeeper implements scientific, educational, and legal programs aimed at protecting water
`
`quality and habitat in the Columbia River Basin. This lawsuit is part of Riverkeeper’s effort to
`
`improve water quality in the Columbia River Basin for purposes including recreation, habitat
`
`quality, and subsistence, recreational, and commercial fishing.
`
`10.
`
`Riverkeeper has representational standing to bring this action. Riverkeeper has
`
`COMPLAINT – 3
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 4 of 19
`
`over 16,000 members, some of whom reside in the vicinity of waters affected by Perennial’s
`
`discharges of pollutants. Members of Riverkeeper use and enjoy the waters and the surrounding
`
`areas that are adversely affected by Perennial’s discharges. Riverkeeper’s members use these
`
`areas for, inter alia, fishing, swimming, hiking, walking, photography, boating, and observing
`
`wildlife. Perennial has violated the CWA by discharging pollutants to waters of the United States
`
`without the required NPDES permit. Riverkeeper and its members have concerns about the
`
`impacts of Perennial’s discharges of stormwater associated with construction activity on the
`
`Columbia River and its tributaries. Perennial’s construction activities and associated stormwater
`
`discharges degrade water quality in the Columbia River Basin. The environmental, health,
`
`aesthetic, and recreational interests of Riverkeeper’s members have been, are being, and will be
`
`adversely affected by Perennial’s CWA violations addressed herein and by the members’
`
`reasonable concerns related to the effects of the violations and pollutant discharges. These
`
`injuries are fairly traceable to the violations and redressable by the Court.
`
`11.
`
`Defendant Perennial Power Holdings, Inc. is a corporation authorized to conduct
`
`business under the laws of the State of Oregon.
`
`12.
`
`Defendant Perennial-WindChaser, LLC is a corporation authorized to conduct
`
`business under the laws of the State of Oregon.
`
`13.
`
`Defendant Perennial-WindChaser, LLC is a wholly owned subsidiary of
`
`Defendant Perennial Power Holdings, Inc.
`
`14.
`
`Perennial seeks to develop the Perennial Wind Chaser Station, a gas-fired
`
`combustion turbine generator facility that would be constructed adjacent to the Hermiston
`
`COMPLAINT – 4
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 5 of 19
`
`Generating Station in Hermiston, Oregon.1 As used herein, the term “Site” includes all areas
`
`associated with the proposed development of the Perennial Wind Chaser Station, including areas
`
`proposed for the generating plant and contiguous and/or adjacent areas owned and/or operated by
`
`Perennial, areas proposed for temporary laydown or other construction work, areas proposed for
`
`construction and/or modification of transmission lines, areas proposed for construction and/or
`
`modification of natural gas pipelines, areas proposed for construction and/or modification of
`
`substations, and any other areas proposed for construction and/or modifications associated with
`
`the proposed project.
`
`IV.
`
`LEGAL BACKGROUND
`
`15.
`
`Congress enacted the CWA to “restore and maintain the chemical, physical, and
`
`biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
`
`16.
`
`As relevant here, section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits “the
`
`discharge of any pollutant by any person” unless such discharge is authorized by an NPDES
`
`permit issued under section 402 of the CWA, 33 U.S.C. § 1342.
`
`17.
`
`The CWA defines the term “discharge of a pollutant” to mean, in part, “any
`
`addition of any pollutant to navigable waters from any point source . . . .” 33 U.S.C. § 1362(12).
`
`18.
`
`Section 402(a) of the CWA empowers EPA or an authorized state to issue
`
`NPDES permits authorizing discharges of pollutants. 33 U.S.C. § 1342(a). The State of Oregon
`
`has established a federally-approved state NPDES program administered by the Oregon DEQ.
`
`19.
`
`Accordingly, DEQ may issue NPDES permits authorizing discharges of
`
`pollutants. Compliance with the terms and conditions of an NPDES permit is deemed
`
`                                                       
`1 The approximate location of the proposed generating facility is: 45°48’09.06” N,
`119°21’52.26” W.
`
`COMPLAINT – 5
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 6 of 19
`
`compliance with the general discharge prohibition in section 301(a) of the CWA. 33 U.S.C. §
`
`1342(k). Discharges of pollutants that are not authorized by an NPDES permit violate the CWA
`
`and are grounds for a citizen enforcement action. 33 U.S.C. §§ 1311(a), 1365(a)(1), (f)(1).
`
`20.
`
`The CWA defines the term “point source” to mean, in part, “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. * * *.” 33 U.S.C.
`
`§ 1362(14).
`
`21.
`
`The CWA defines the term “pollutant” to mean, in part, “dredged spoil, solid
`
`waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
`
`biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand,
`
`cellar dirt and industrial, municipal, and agricultural waste discharged into water. * * *.” 33
`
`U.S.C. § 1362(6).
`
`22.
`
`The CWA’s prohibition on discharging pollutants from point sources applies
`
`broadly. The CWA defines the term “navigable waters” to mean “the waters of the United States,
`
`including the territorial seas.” 33 U.S.C. § 1362(7). The CWA defines the term “person” to mean
`
`“an individual, corporation, partnership, association, State, municipality, commission, or political
`
`subdivision of a State, or any interstate body.” 33 U.S.C. § 1362(5).
`
`23.
`
`The CWA regulates and requires an NPDES permit for stormwater discharges
`
`“associated with industrial activity.” 33 U.S.C. §§ 1342(p)(2)(B), (p)(3)(A).
`
`24.
`
`The term “stormwater discharge associated with industrial activity” is defined to
`
`include stormwater discharges associated with construction activity, including clearing, grading,
`
`and excavation, except operations that result in the disturbance of less than five acres of total
`
`COMPLAINT – 6
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 7 of 19
`
`land area, but including disturbance of less than five acres of total land area that is a part of a
`
`larger common plan or development or sale if the larger common plan will ultimately disturb
`
`five acres or more. See 40 C.F.R. § 122.26(b)(14)(x). Further, beginning in 1994, discharges of
`
`stormwater associated with smaller construction activities are also subject to the NPDES permit
`
`requirement where certain conditions are present, including “[c]onstruction activities including
`
`clearing, grading, and excavating that result in land disturbance of equal to or greater than one
`
`acre . . . .” See id. §§ 122.26(a)(9)(i)(B), (b)(15) (defining small construction activity subject to
`
`NPDES permit requirements).
`
`25.
`
`DEQ has promulgated regulations to implement the NPDES program in the State
`
`of Oregon. The regulations provide that a person must obtain a valid NPDES permit before
`
`discharging stormwater associated with construction actives that are subject to EPA’s permit
`
`requirements identified above. Or. Admin. R. 340-045-0015(2).
`
`26.
`
`DEQ has issued a general permit for discharges of stormwater associated with
`
`construction activity. The prior iteration of DEQ’s construction stormwater general permit was
`
`issued in December 2016 and expired on December 14, 2020 (“2016 Permit”).
`
`27.
`
`To obtain coverage under the 2016 Permit, an applicant must submit at least thirty
`
`days before any planned land disturbance an application, an approved Land Use Compatibility
`
`Statement, and an Erosion and Sediment Control Plan. 2016 Permit, Schedule A1.
`
`28.
`
`DEQ issued a new general permit for discharges of stormwater associated with
`
`construction activity that became effective on December 15, 2020 and that has an expiration date
`
`of December 14, 2025 (“2020 Permit”).
`
`29.
`
`To obtain coverage under the 2020 Permit, an applicant must submit at least thirty
`
`days before any planned land disturbance or construction activities an application, an Erosion
`
`COMPLAINT – 7
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 8 of 19
`
`and Sediment Control Plan, and a Land Use Compatibility Statement indicating that the proposed
`
`activities are compatible with the local government’s acknowledged comprehensive plan. 2020
`
`Permit, Schedule A1.2.2.
`
`30.
`
`Both the 2016 and 2020 Permit require the implementation of best management
`
`practices to reduce erosion and otherwise minimize stormwater contamination, to inspect and
`
`monitor the site and associated discharges, and to take corrective actions where problems are
`
`identified. 2016 Permit, Schedule A7–9, A12–13, B1; 2020 Permit, Schedule A2, A3–5, B6.
`
`V.
`
`FACTS
`
`31.
`
`Perennial’s construction of the Perennial Wind Chaser Station at the Site is
`
`subject to the NPDES permit requirements described above. The project will and has generated
`
`discharges of stormwater associated with construction activity, including clearing, grading, and
`
`excavation, and the project will result in the disturbance of five or more acres of total land area.
`
`See 40 C.F.R. § 122.26(b)(14)(x). Alternatively, the project would be subject to the NPDES
`
`permit requirements as a small construction activity under 40 C.F.R. §§ 122.26(a)(9)(i)(B),
`
`(b)(15).
`
`32.
`
`Upon information and belief, Perennial commenced construction activities at the
`
`Site on or around September 21, 2020. Perennial’s construction activities at the Site have
`
`included, but are not limited to, clearing and grading activities for an access road.
`
`33.
`
`Perennial had not submitted a complete and current application to DEQ for
`
`coverage under DEQ’s 2016 or 2020 Permit when construction activity at the Site commenced.
`
`34.
`
`As of the filing of this complaint, Perennial has not submitted a complete and
`
`current application to DEQ for coverage under the 2020 Permit for the Site.
`
`35.
`
`As of the filing of this complaint, DEQ has not granted coverage to Perennial
`
`COMPLAINT – 8
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 9 of 19
`
`under the 2016 Permit or 2020 Permit for Site. Nor has Perennial obtained any other NPDES
`
`permit coverage for discharges of stormwater associated with construction activity from the Site
`
`as of the filing of this complaint.
`
`36.
`
`The Site discharges stormwater associated with industrial activity—i.e.,
`
`stormwater associated with construction activity—every time there is sufficient precipitation to
`
`generate a discharge from the Site, including whenever there is at least 0.1 inches of precipitation
`
`in a twenty-four hour period.
`
`37.
`
`The Site discharges such construction stormwater via pipes, ditches, culverts,
`
`channels, stormwater conveyance systems, and other point sources to the Umatilla River, the
`
`Columbia River, and Westland A Canal, which are waters of the United States.
`
`38.
`
`Perennial has violated section 301(a) of the CWA each time it discharges
`
`stormwater associated with construction activity from the Site to waters of the United States,
`
`including each time there is at least 0.1 inches of precipitation in a twenty-four hour period.
`
`39.
`
`These illegal discharges include, but are not limited to, those that occurred on
`
`October 10, 11, and 24, 2020, November 5, 6, 7, 11, 13, 14, and 15, 2020, and December 17, 20,
`
`21, and 26, 2020.
`
`40.
`
`Upon information and belief, Perennial’s discharges of stormwater associated
`
`with construction activity from the Site in violation of section 301(a) of the CWA as alleged
`
`herein are ongoing because they are continuing to occur and/or are reasonably likely to recur.
`
`41.
`
`Perennial’s unpermitted discharges of pollutants to the Umatilla River, the
`
`Columbia River, and Westland A Canal degrade the environment and the water quality of the
`
`Columbia River Basin. Perennial’s unpermitted discharges of pollutants foul waters where
`
`Riverkeeper’s members live, work, recreate, fish, and engage in other activities.
`
`COMPLAINT – 9
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 10 of 19
`
`42.
`
`Perennial’s unpermitted discharges of pollutants were avoidable had Perennial
`
`been diligent in overseeing and controlling operations, maintenance, monitoring, and compliance
`
`with regulatory laws.
`
`43.
`
`Perennial has benefitted economically from its unpermitted discharges of
`
`pollutants. The economic benefit that has accrued to Perennial from its CWA violations alleged
`
`herein far exceeds the administrative penalty imposed by DEQ for Perennial’s failure to obtain
`
`an NPDES permit before commencing construction activity at the Site.
`
`44.
`
`Any and all additional violations of the CWA by Perennial that occur or are
`
`discovered after those described in the Notice Letter but before a final decision in this action are
`
`continuing violations subject to this complaint.
`
`45. Without the imposition of appropriate civil penalties and/or the issuance of an
`
`injunction and other relief, Perennial is likely to continue to violate the CWA to the further
`
`injury of Riverkeeper, its members, and others.
`
`VI. CAUSE OF ACTION
`
`46.
`
`Riverkeeper hereby alleges and incorporates by reference all of the preceding
`
`paragraphs.
`
`47.
`
`Perennial is a “person” within the meaning of section 301(a) of the CWA, 33
`
`U.S.C. §1311(a), and is subject to suit under the CWA’s citizen suit provision, 33 U.S.C. § 1365.
`
`48.
`
`Perennial has violated and is violating section 301(a) of the CWA, 33 U.S.C. §
`
`1311(a), by discharging pollutants from a point source to waters of the United States. These are
`
`violations of an “effluent standard or limitation” as that term is defined by section 505(f) of the
`
`CWA, 33 U.S.C. § 1365(f). These violations are ongoing.
`
`
`
`COMPLAINT – 10
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 11 of 19
`
`VII. RELIEF REQUESTED
`
` 
`
`WHEREFORE, Riverkeeper respectfully requests that the Court grant the following
`
`relief:
`
`A.
`
`Declare that Perennial has violated and continues to be in violation of the CWA as
`
`alleged herein;
`
`B.
`
`C.
`
`Issue injunctive relief requiring Perennial to comply with the CWA;
`
`Issue injunctive relief requiring Perennial to remediate the environmental damage
`
`and ongoing impacts resulting from its illegal discharges of pollutants;
`
`D.
`
`Order Perennial to provide Riverkeeper with copies of all reports and other
`
`documents that Perennial submits to or receives from EPA or DEQ regarding discharges of
`
`pollutants from the Site at the time the reports or documents are submitted to or received from
`
`those authorities, for a period of two years after completion of this case;
`
`E.
`
`Order Perennial to pay civil penalties pursuant to sections 309(d) and 505(a) of
`
`the CWA, 33 U.S.C. §§ 1319(d) and 1365(a), and 40 C.F.R. § 19;
`
`F.
`
`Award Riverkeeper its litigation expenses, including reasonable attorneys’ and
`
`expert witness fees, as authorized by section 505(d) of the CWA, 33 U.S.C. § 1365(d), or as
`
`otherwise authorized by law; and
`
`G.
`
`Award such other relief as this Court deems appropriate.
`
`RESPECTFULLY SUBMITTED this 28th day of December, 2020.
`
`
`
`
`
`COMPLAINT – 11
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 12 of 19
`
`
`
`
`
`KAMPMEIER & KNUTSEN PLLC
`
`
`By: s/ Brian A. Knutsen
`Brian A. Knutsen, OSB No. 112266
`Emma A. O. Bruden, OSB No. 163525
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`Telephone: (503) 841-6515 (Knutsen)
`
` (503) 719-5641 (Bruden)
`Email: brian@kampmeierknutsen.com
`emma@kampmeierknutsen.com
`
`COLUMBIA RIVERKEEPER
`Erin Saylor, OSB No. 085725 (admission application forthcoming)
`1125 SE Madison Street, Suite 103A
`Portland, Oregon 97214
`Telephone: (541) 399-4775
`Email: erin@columbiariverkeeper.org
`
`Attorneys for Plaintiff Columbia Riverkeeper 
`
`
`
`
`
`
`
`
`
`COMPLAINT – 12
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 13 of 19
`Case 2:20-cv-02256—SU Document 1
`Filed 12/28/20 Page 13 of 19
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT 1
`
`EXHIBIT 1
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 14 of 19
`
` 
`
`KAMPMEIER & KNUTSEN PLLC
`ATTORNEYS AT LAW
`
`
`EMMA A.O. BRUDEN
`Licensed in Oregon & Washington
`503.719.5641
`emma@kampmeierknutsen.com
` 
`
`October 20, 2020
`
`
`Via CERTIFIED MAIL – Return Receipt Requested
`Managing Agent
`Managing Agent
`Perennial-WindChaser, LLC
`Perennial Power Holdings, Inc.
`300 Madison Avenue, Fourth Floor
`300 Madison Avenue, Fourth Floor
`New York, NY 10017
`New York, NY 10017
`
`
`JJ Jamieson
`
`SVP Operations & Development
`Perennial Power Holdings, Inc.
`24 Waterway Avenue, Suite 740
`Woodlands, TX 77380
`
`Re: Notice of Intent to File Suit for Violations of the Clean Water Act
`
`Dear Managing Agent:
`
`This letter is submitted on behalf of Columbia Riverkeeper. This letter provides notice
`
`that Perennial Power Holdings, Inc. and Perennial-WindChaser, LLC (collectively, “Perennial”)
`are in violation of the Clean Water Act (“CWA”) and that Columbia Riverkeeper intends to file a
`citizen suit under section 505 of the CWA, 33 U.S.C. § 1365, for these violations at the
`expiration of a sixty day notice period initiated with this letter.
`
`
`Perennial has and continues to violate section 301(a) of the CWA, 33 U.S.C. § 1311(a),
`by discharging pollutants to waters of the United States and the State of Oregon from the site
`proposed for development of the Perennial Wind Chaser Station, a gas-fired combustion turbine
`generator facility that would be constructed adjacent to the Hermiston Generating Station in
`Hermiston, Oregon.1 As used herein, the term “site” includes all areas associated with the
`proposed development of the Perennial Wind Chaser Station, including areas proposed for the
`generating plant and contiguous and/or adjacent areas owned and/or operated by Perennial, areas
`proposed for temporary laydown or other construction work, areas proposed for construction
`and/or modification of transmission lines, areas proposed for construction and/or modification of
`natural gas pipelines, areas proposed for construction and/or modification of substations, and any
`                                                       
`1 The approximate location of the proposed generating facility is: 45°48’09.06” N,
`119°21’52.26” W.
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 15 of 19
`
`other areas proposed for construction and/or modifications associated with the proposed project.
`As described herein, Perennial is discharging pollutants, including stormwater associated with
`industrial activity, from the site without the authorization of a National Pollutant Discharge
`Elimination System (“NPDES”) permit in violation of the CWA.
`
`I.
`
`COLUMBIA RIVERKEEPER’S COMMITMENT TO PROTECTING A
`FISHABLE AND SWIMMABLE COLUMBIA RIVER.
`
`
`Columbia Riverkeeper’s mission is to restore and protect the water quality of the
`
`Columbia River and all life connected to it, from the headwaters to the Pacific Ocean. Columbia
`Riverkeeper is a non-profit organization with members who live, recreate, and work throughout
`the Columbia River basin, including in areas affected by discharges from Perennial’s site.
`
`Water quality standards are designed to protect designated uses, including aquatic life,
`
`fishing, swimming, and drinking water. Perennial’s stormwater discharges have the potential to
`reach the Columbia River both directly and via the Umatilla River, which flows to the Columbia.
`The Oregon Department of Environmental Quality (DEQ) has recognized “excess soil erosion
`which leads to turbidity and impaired salmonid spawning areas” as one of the most widespread
`concerns in the Umatilla River Basin. See Umatilla River Basin Total Maximum Daily Load
`(TMDL) and Water Quality Management Plan (WQMP) (available at
`https://www.oregon.gov/deq/FilterDocs/umatmdl.pdf). The Umatilla River is currently listed as
`impaired for turbidity, despite having TMDL limits for sediment.
`
`Stormwater runoff is “one of the great challenges of water pollution control” and “is a
`
`principal contributor to water quality impairment of waterbodies nationwide.” See Urban Storm
`Management in the United States, National Research Council (Oct. 15, 2008) (available online
`at: http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf). When rain sends runoff across
`streets, construction projects, and industrial facilities, the water picks up contaminants that are
`drained into waterways such as the Columbia River and its tributaries. To address this leading
`cause of water quality impairment, Columbia Riverkeeper invests significant time and resources
`in reducing pollutant loads from industrial, municipal, and construction stormwater sources.
`
`This notice of intent to sue Perennial is part of Columbia Riverkeeper’s effort to improve
`
`water quality in the Columbia River Basin for purposes including swimming, habitat quality, and
`subsistence, recreational, and commercial fishing. Perennial has failed to obtain coverage under
`Oregon’s Construction Stormwater General Permit and has thereby failed to develop and
`implement important plans and procedures designed to minimize and monitor pollution
`discharges from the site.
`
`II.
`
`
`LEGAL FRAMEWORK.
`
`Congress enacted the CWA to “restore and maintain the chemical, physical, and
`biological integrity of the Nation’s waters.” 33 U.S.C. §1251(a). To effect that policy, and as
`relevant here, section 301(a) of the CWA prohibits discharges of pollutants unless they are in
`compliance with an NPDES permit issued by the U.S. Environmental Protection Agency
`(“EPA”) or an authorized state. See 33 U.S.C. §§ 1311(a), 1342. The NPDES permitting scheme
`
` 
`
`2
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 16 of 19
`
`is the primary means by which discharges of pollutants are controlled. At a minimum, NPDES
`permits must include technology-based effluent limitations, any more stringent limitations
`necessary to meet water quality standards, and monitoring and reporting requirements. See 33
`U.S.C. §§ 1311, 1342, 1318. In the State of Oregon, the Oregon Department of Environmental
`Quality (“DEQ”) is authorized to administer the NPDES program.
`
`The CWA defines the term “discharge of a pollutant” in part as “any addition of any
`pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The term “point
`source” is defined 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.” Id. § 1362(14). The CWA defines “pollutant” to include “dredged
`spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
`wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock,
`sand, cellar dirt and industrial . . . waste discharged into water.” Id. § 1362(6). Section
`402(p)(3)(A) of the CWA, 33 U.S.C. § 1342(p)(3)(A), makes clear that “stormwater discharges
`associated with industrial activity” that are not authorized by an NPDES permit violate section
`301(a) of the CWA.
`
`EPA has defined the term “stormwater discharge associated with industrial activity” to
`include stormwater discharges associated with construction activity, including clearing, grading,
`and excavation, except operations that result in the disturbance of less than five acres of total
`land area, but including disturbance of less than five acres of total land area that is a part of a
`larger common plan or development or sale if the larger common plan will ultimately disturb
`five acres or more. See 40 C.F.R. § 122.26(b)(14)(x). Beginning in 1994, discharges of
`stormwater associated with smaller construction activities are also subject to the NPDES permit
`requirement where certain conditions are present, including “[c]onstruction activities including
`clearing, grading, and excavating that result in land disturbance of equal to or greater than one
`acre . . . .” See id. §§ 122.26(a)(9)(i)(B), (b)(15) (defining small construction activity subject to
`NPDES permit requirements).
`
`The DEQ has promulgated regulations to implement the NPDES program in the State of
`
`Oregon. The regulations provide that a person must obtain a valid NPDES permit before
`discharging stormwater associated with construction actives that are subject to EPA’s permit
`requirements identified above. Or. Admin. R. 340-045-0015(2). DEQ has issued a general permit
`for discharges of stormwater associated with construction activity, the current iteration of which
`was issued in December 2016 and expires on December 14, 2020 (“1200-C Permit”). To obtain
`coverage under the 1200-C Permit, an applicant must submit at least thirty days before any
`planned land disturbance an application, an approved Land Use Compatibility Statement, and an
`Erosion and Sediment Control Plan. 1200-C Permit, Schedule A1. The 1200-C Permit requires
`the implementation of best management practices to reduce erosion and otherwise minimize
`stormwater contamination, inspect and monitor the site and associated discharges, and take
`corrective actions where problems are identified. Id. at Schedule A7–9, A12–13, Schedule B1.
`
`
`
`
` 
`
`3
`
`

`

`Case 2:20-cv-02256-SU Document 1 Filed 12/28/20 Page 17 of 19
`
`III. ALLEGED VIOLATIONS OF THE CLEAN WATER ACT BY PERENNIAL.
`
`Perennial’s construction of the Perennial Wind Chaser Station at the site is subject to the
`
`NPDES permit requirements described above. Upon information and belief, Perennial
`commenced construction activities at the site on or around September 21, 2020. Perennial has not
`submitted a complete and current application to DEQ for coverage under DEQ’s current 1200-C
`Permit. DEQ has not granted coverage to Perennial under any 1200-C Permit for discharges
`associated with construction activities from the site. Nor has Perennial secured any other NPDES
`permit for discharges associated with construction activity from the site.
`
`The site discharges stormwater associated with industrial activity—i.e., stormwater
`
`associated with construction activity—every time there is sufficient precipitation to generate a
`discharge from the site, including whenever there is at least 0.1 inches of precipitation in a
`twenty-four hour period. The site discharges such construction stormwater via pipes, ditches,
`channels, stormwater conveyance systems, and other point sources to the Umatilla River, the
`Columbia River, and Westland A Canal.
`
`Perennial has violated and will continue to violate section 301(a) of the CWA each time
`
`it discharges stormwater associated with construction activity from the site to the waters of the
`United States and the State of Oregon, including each time there is at least 0.1 inches of
`precipitation in a twenty-four hour period. These illegal discharges include those that occurred
`on October 10, 2020 and October 11, 2020.
`
`IV.
`
`
`
`
`PARTY GIVING NOTICE.
`
`The full name, address, and telephone number of the party giving notice is:
`
`Columbia Riverkeeper
`407 Portway Avenue, Suite 301
`Hood River, Oregon 97031
`(541) 399-5312
`
`ATTORNEYS REPRESENTING RIVERKEEPER.
`
`The attorneys representing Riverkeeper in th