Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 1 of 31
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`Brian A. Knutsen, OSB No. 112266
`Kampmeier & Knutsen, PLLC
`1300 S.E. Stark Street, Suite 202
`Portland, Oregon 97214
`(503) 841-6515
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`Miles Johnson, OSB No. 125773
`Columbia Riverkeeper
`407 Portway Avenue, Suite 301
`Hood River, Oregon 97031
`(541) 490-0487
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`Attorneys for Plaintiff Columbia Riverkeeper
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF OREGON
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`PENDLETON DIVISION
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`COLUMBIA RIVERKEEPER,
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` Plaintiff,
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` v.
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`UNITED STATES ARMY CORPS OF
`ENGINEERS; and LIEUTENANT
`GENERAL SCOTT A. SPELLMON, in his
`official capacity as the Commanding General
`and Chief of Engineers of the United States
`Army Corps of Engineers,
`
` Defendants.
`
`
`Case No. 2:21-cv-01777
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`(Pursuant to Clean Water Act,
`33 U.S.C. § 1365(a)(1))
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`

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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 2 of 31
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`I.
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`INTRODUCTION.
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`1.
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`The Columbia River is one of the West’s great river systems. This river supports
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`rich fishing traditions, provides water for communities and agriculture, supports recreation
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`opportunities, and powers hydroelectric dams. The Columbia River is also severely degraded by
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`pollution. Toxic pollution threatens the health of people that eat resident fish and jeopardizes the
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`public’s right to eat fish caught locally. Rising water temperatures also threaten the health of
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`salmon and other aquatic life that rely on cool water for survival, as demonstrated in 2015 when
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`water reached temperatures warm enough to kill thousands of migrating sockeye salmon headed
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`to the mid-Columbia and lower Snake Rivers. Scientists estimate that more than 277,000
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`sockeye, about 55 percent of the total run returning from the ocean to spawn, died in the
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`Columbia and Snake Rivers due to warm water temperatures.
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`2.
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`Congress passed the Clean Water Act (“CWA”) in 1972 in an effort to prevent
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`such occurrences and to otherwise “restore and maintain the chemical, physical, and biological
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`integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Central to achieving these objectives is
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`the CWA’s prohibition on any discharges of pollutants to waters of the United States unless
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`authorized by a National Pollutant Discharge Elimination System (“NPDES”) permit. See id. §
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`1311(a). Such permits restrict any pollution discharges to, inter alia, ensure they do not cause or
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`contribute to violations of water quality standards in the receiving waters. See id. §
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`1311(b)(1)(C); 40 C.F.R. § 122.44(d).
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`3.
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`The United States Army Corps of Engineers, however, has continued to discharge
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`pollutants, including heated cooling water and oils and greases, from the John Day Dam and the
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`COMPLAINT
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 3 of 31
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`McNary Dam (collectively, “Dams”)1 to the Columbia River without obtaining NPDES permits
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`in violation of the CWA since its passage in 1972.
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`4.
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`Columbia Riverkeeper filed a CWA citizen suit against the United States Army
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`Corps of Engineers for these illegal discharges in 2013. That litigation was resolved with a
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`settlement agreement in 2014 in which the United States Army Corps of Engineers agreed to
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`apply for the necessary permits and take other actions to reduce its water quality impacts, and
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`Columbia Riverkeeper agreed to refrain from further litigation related to these illegal discharges
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`for seven years to allow time for the permitting process. Remarkably, that seven-year period
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`concluded on August 14, 2021, with the Dams continuing to discharge pollutants to the
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`Columbia River without NPDES permits in violation of the CWA. With this action, Columbia
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`Riverkeeper seeks to finally bring the Dams into compliance with the CWA.
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`5.
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`Columbia Riverkeeper brings this civil action for declaratory and injunctive relief
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`to compel defendants the United States Army Corps of Engineers and Lieutenant General Scott
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`A. Spellmon, in his official capacity as the Commanding General and Chief of Engineers of the
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`United States Army Corps of Engineers (collectively, “Corps”), to comply with sections 301(a)
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`and 402 of the CWA, 33 U.S.C. §§ 1311(a) and 1342, by discontinuing unpermitted discharges
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`of pollutants from the Dams to the Columbia River unless and until the Corps obtains NPDES
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`permits authorizing the discharges.
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`                                                       
`1 The terms “Dam” and “Dams” as used herein includes the Dam(s) and all associated structures
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`and facilities, including turbines, powerhouses, transformers, spillways, navigation lock systems,
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`fish passage facilities, and cranes.
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`6.
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`This action is a citizen suit brought under section 505 of the CWA as amended, 33
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`U.S.C. § 1365.
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`
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`7.
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`The Corps owns and operates the hydroelectric Dams on the Columbia River that
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`discharge pollutants, including oils, greases, other lubricants, and cooling water and the heat
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`associated therewith. These discharges are not authorized by NPDES permits, and therefore
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`violate section 301(a) of the CWA, 33 U.S.C. § 1311(a).
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`8.
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`Columbia Riverkeeper seeks a declaratory judgment, injunctive relief, and the
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`award of costs, including attorneys’ and expert witnesses’ fees.
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`II.
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`JURISDICTION AND VENUE.
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`9.
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`The Court has subject matter jurisdiction over Columbia Riverkeeper’s claims
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`under section 505(a) of the CWA, 33 U.S.C. § 1365(a), 28 U.S.C. § 1331 (federal question), and
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`28 U.S.C. § 1346(a)(2) (United States as Defendant). Section 505(a) and (d) of the CWA, 33
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`U.S.C. § 1365(a) and (d), authorizes the requested relief. The requested relief is also proper
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`under 28 U.S.C. § 2201 (declaratory relief) and 28 U.S.C. § 2202 (injunctive relief).
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`10.
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`Section 505(a) of the CWA, 33 U.S.C. § 1365(a), waives the Corps’ sovereign
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`immunity for Columbia Riverkeeper’s claims.
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`11.
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`In accordance with section 505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A),
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`and 40 C.F.R. § 135.2, Columbia Riverkeeper notified the Corps of its CWA violations and of
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`Columbia Riverkeeper’s intent to sue by letter dated August 31, 2021 (“Notice Letter”). A copy
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`of the Notice Letter is attached to this complaint as Exhibit 1. In accordance with section
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`505(b)(1)(A) of the CWA, 33 U.S.C. § 1365(b)(1)(A), and 40 C.F.R. § 135.2(a)(3), Columbia
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`Riverkeeper provided copies of the Notice Letter to the Administrator of the United States
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`Environmental Protection Agency (“EPA”), the Regional Administrator of Region 10 of the
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 5 of 31
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`EPA, the Attorney General of the United States, and the Director of the Oregon Department of
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`Environmental Quality (“DEQ”).
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`
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`12.
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`At the time of filing this complaint, more than sixty days have passed since the
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`Notice Letter and the copies thereof were issued as described in the preceding paragraph.
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`13.
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`Neither the EPA nor DEQ has commenced any action constituting diligent
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`prosecution to redress these violations.
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`14.
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`The violations complained of in the Notice Letter are continuing or are reasonably
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`likely to continue to occur. The Corps is in violation of the CWA.
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`15.
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`The sources of the violations complained of are located in Sherman County and
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`Umatilla County, Oregon, within the District of Oregon, and venue is therefore appropriate in the
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`District of Oregon under section 505(c)(1) of the CWA, 33 U.S.C. § 1365(c)(1).2
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`III.
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`PARTIES.
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`16.
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`Plaintiff Columbia Riverkeeper is suing on behalf of itself and its members.
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`Columbia Riverkeeper is a 501(c)(3) non-profit corporation registered in the State of Oregon.
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`Columbia Riverkeeper’s mission is to restore and protect the water quality of the Columbia River
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`and all life connected to it, from the headwaters to the Pacific Ocean. To achieve these
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`objectives, Columbia Riverkeeper operates scientific, educational, and legal programs aimed at
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`protecting water quality, air quality, and habitat in the Columbia River Basin.
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`                                                       
`2 The John Day Dam and the McNary Dam also discharge pollutants to waters within Klickitat
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`County, Washington, and Benton County, Washington, respectively. Those discharges are not
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`the subject of this complaint, but are the subject of a separate complaint being filed by Columbia
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`Riverkeeper in the District Court for the Eastern District of Washington.
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`17.
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`Columbia Riverkeeper has representational standing to bring this action.
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`Columbia Riverkeeper has over 16,000 members, many of which reside in Oregon near waters
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`affected by the Corps’ illegal discharges of pollutants. Members of Columbia Riverkeeper use
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`and enjoy the waters and the surrounding areas that are adversely affected by the Corps’
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`discharges. Columbia Riverkeeper’s members use these areas for, inter alia, fishing, rafting,
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`hiking, walking, windsurfing, photographing, boating, and observing wildlife. The
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`environmental, health, aesthetic, and recreational interests of Columbia Riverkeeper’s members
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`have been, are being, and will be adversely affected by the Corps’ illegal discharges of pollutants
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`from the Dams and by the members’ reasonable concerns related to the effects of the discharges.
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`The members are further concerned that, because these discharges are not subject to NPDES
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`permits as required by the CWA, there are not sufficient restrictions imposed on, and monitoring
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`and reporting of, the discharges to minimize the adverse water quality impacts of the discharges.
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`These injuries are fairly traceable to the violations and redressable by the Court.
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`18.
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`Columbia Riverkeeper has organizational standing to bring this action. Columbia
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`Riverkeeper has been actively engaged in a variety of educational and advocacy efforts to
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`improve water quality and to address sources of water quality degradation in the waters of the
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`Columbia River and its tributaries, including the Snake River. The Corps’ failure to obtain
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`NPDES permits for its discharges has deprived Columbia Riverkeeper of information that would
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`be required by the permits’ monitoring and reporting conditions and available to Columbia
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`Riverkeeper. This information could assist Columbia Riverkeeper in its efforts to educate and
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`advocate for greater environmental protection. Thus, Columbia Riverkeeper’s organizational
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`interests have been adversely affected by the Corps’ violations. These injuries are fairly traceable
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`to the violations and redressable by the Court.
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`19.
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`Defendant United States Army Corps of Engineers is a federal agency within the
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`Department of Defense. The United States Army Corps of Engineers owns and operates the
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`Dams that are the subject of this complaint.
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`20.
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`Defendant Lieutenant General Scott A. Spellmon is the Commanding General and
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`Chief of Engineers of the United States Army Corps of Engineers. Lieutenant General Spellmon
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`is being sued in his official capacity. As the Commanding General and Chief of Engineers,
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`Lieutenant General Spellmon is responsible for ensuring the United States Army Corps of
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`Engineers complies with applicable laws.
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`IV. LEGAL FRAMEWORK.
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`21.
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`Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes unlawful the discharge
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`of any pollutant by any person unless authorized by, inter alia, a NPDES permit issued pursuant
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`to section 402 of the CWA, 33 U.S.C. § 1342. See also Comm. To Save Mokelumne River v. E.
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`Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993) (“[T]he [CWA] categorically prohibits
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`any discharge of a pollutant from a point source without a permit.”).
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`22.
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`Section 502(12) of the CWA, 33 U.S.C. § 1362(12), defines “discharge of a
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`pollutant” to include “any addition of any pollutant to navigable waters from any point source.”
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`23.
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`Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines the term “navigable
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`waters” as “the waters of the United States, including the territorial seas.”
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`24.
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`Section 502(14) of the CWA, 33 U.S.C. § 1362(14), defines “point source” as
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`“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,
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`channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal
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`feeding operation, or vessel or other floating craft, from which pollutants are or may be
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`discharged.”
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`25.
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`NPDES permits transform generally applicable standards into facility-specific
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`effluent limits. Env’t Prot. Agency v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 71 (1980) (quoting
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`Env’t Prot. Agency v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 (1976)).
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`NPDES permits may include two types of effluent limits—technology-based standards and,
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`where discharges may contribute to violations of water quality standards in the receiving water,
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`more stringent water quality-based standards designed to ensure that water quality standards are
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`met. 40 C.F.R. § 122.44(a)(1), (d); see also 33 U.S.C. § 1311(b)(1)(C); Nat. Res. Def. Council v.
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`U.S. Env’t Prot. Agency, 915 F.2d 1314, 1316–17 (9th Cir. 1990); Defs. of Wildlife v. Browner,
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`191 F.3d 1159, 1163 (9th Cir. 1999), amended on other grounds by, 197 F.3d 1035 (9th Cir.
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`1999).
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`26.
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`NPDES permits must also include monitoring and reporting requirements
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`sufficient to confirm the permittee is in compliance with effluent limitations. 40 C.F.R. §
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`122.48(b); Food & Water Watch v. U.S. Env’t Prot. Agency, 13 F.4th 896, 904–05 (9th Cir.
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`2021).
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`27.
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`Section 303 of the CWA requires the establishment of water quality standards.
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`See 33 U.S.C. § 1313(a)–(c). “A water quality standard defines the water quality goals of a water
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`body, or portion thereof, by designating the use or uses to be made of the water and by setting
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`criteria that protect the designated uses.” 40 C.F.R. § 131.2. These standards serve “dual
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`purposes” under the CWA: (1) they set the water quality goals for a specific body of water and
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`thereby provide a reference against which to determine whether the water body is meeting
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`applicable standards; and (2) they serve as the regulatory basis for the establishment of water-
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`quality-based restrictions. See id. “[W]ater quality standards should, wherever attainable, provide
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`water quality for the protection and propagation of fish . . . .” Id.
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`28.
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`Section 303(d) of the CWA, 33 U.S.C. § 1313(d), requires that each state identify
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`water bodies within its boundaries that do not meet water quality standards—the result is the
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`“303(d) list.” See 33 U.S.C. § 1313(d); Friends of Pinto Creek v. U.S. Env’t Prot. Agency, 504
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`F.3d 1007, 1011 (9th Cir. 2007). For such “impaired waters,” the state is required to submit to
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`EPA a total maximum daily load (“TMDL”) that specifies the amount of pollution that can be
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`discharged from each source, referred to as wasteload allocations, while still achieving water
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`quality standards. See 33 U.S.C. § 1313(d)(1)(C), (d)(2); Friends of Pinto Creek, 504 F.3d at
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`1011. If the state fails to submit a TMDL to EPA or if EPA rejects the TMDL, then EPA must
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`itself prepare the TMDL. See 33 U.S.C. § 1313(d)(2).
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`29. Water quality standards and TMDLs are not self-implementing, but instead serve
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`as the basis for setting water-quality-based effluent limitations. See 40 C.F.R. § 131.2; Idaho
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`Sportsmen’s Coal. v. Browner, 951 F. Supp. 962, 965–66 (W.D. Wash. 1996); Anacostia
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`Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 216–17 (D.D.C. 2011).
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`30.
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`Section 401 of the CWA, 33 U.S.C. § 1341, requires that any applicant for a
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`federal license or permit seeking to conduct an activity that may result in discharges to waters to
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`obtain a certification from the state in which the discharge will occur. See PUD No. 1 of
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`Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 707–08 (1994); 33 U.S.C. § 1341(a).
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`31.
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`The state certification issued under section 401 of the CWA, 33 U.S.C. § 1341,
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`must “set forth any effluent limitations and other limitations . . . necessary to assure that any
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`applicant for a Federal license or permit will comply with any applicable effluent limitations and
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`other limitations, under [various provisions of the CWA], and with any other appropriate
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`requirement of State law set forth in such certification . . . .” 33 U.S.C. § 1341(d). The limitations
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`and other requirements of the state’s CWA section 401 certification become conditions of the
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`Federal license or permit. Id.
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`V.
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`FACTUAL BACKGROUD.
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`The Affected Community & Environment.
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`32.
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`In 2006, EPA designated the Columbia River Basin a Critical Large Aquatic
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`A.
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`Ecosystem because toxic contamination and other pollution are so severe. In 2009, EPA released
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`an in-depth report on toxic pollution in the Columbia, the Columbia River Basin: State of River
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`Report for Toxics.3 EPA’s report concluded that harmful pollutants are moving up the food
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`chain, impacting humans, fish, and wildlife. As the report explains, “[i]n 1992, an EPA national
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`survey of contaminants in fish in the United States alerted EPA and others to a potential health
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`threat to tribal and other people who eat fish from the Columbia River Basin.”4 This survey
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`prompted further study on the contaminated fish and the potential impacts on tribal members.
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`33.
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`In particular, EPA funded four Columbia River tribes, through the Columbia
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`River Inter-Tribal Fish Commission (“CRITFC”), to study contaminant levels in fish caught at
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`traditional fishing sites.5 The study demonstrated the presence of 92 toxic chemicals in fish
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`consumed by tribal members, resulting in a 50-fold increase in cancer risk among tribal members
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`                                                       
`3 U.S. ENV’T PROT. AGENCY, COLUMBIA RIVER BASIN STATE OF RIVER REPORT FOR TOXICS
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`(2009), https://www.epa.gov/sites/default/files/documents/ columbia_
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`state_of_the_river_report_jan2009.pdf [hereinafter STATE OF THE RIVER REPORT].
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`4 Id. at 4.
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`5 Id.
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`whose diets rely on river-caught fish.6 Contaminants found in these fish include PCBs, dioxins,
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`furans, arsenic, mercury, and DDE, a toxic breakdown product of DDT.7
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`34.
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`The CRITFC study is not alone in demonstrating the serious problem of toxic
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`contamination. From 1989 to 1995, the Lower Columbia River Bi-State Water Quality Program
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`(“Bi-State Program”) generated substantial evidence showing that water and sediment in the
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`Lower Columbia River and its tributaries have levels of toxic contaminants that are harmful to
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`fish and wildlife.8 The Bi-State Program concluded that:
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` Dioxins and furans, metals, PCBs, PAHs, and pesticides impair the water sediment, and
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`fish and wildlife;
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` Arsenic, a human carcinogen, exceeded both EPA ambient water criteria for protection of
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`human health and the EPA human health advisories for drinking water;
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` Beneficial uses such as fishing, shellfishing, wildlife, and water sports are impaired;
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` Many toxic contaminants are moving up the food chain and accumulating in the bodies of
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`animals and humans that eat fish;
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`                                                       
`6 Id. at 5.
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`7 Id. at 5.
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`8 LOWER COLUMBIA RIVER ESTUARY PARTNERSHIP, LOWER COLUMBIA RIVER AND ESTUARY
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`ECOSYSTEM MONITORING: WATER QUALITY AND SALMON SAMPLING REPORT 1 (2007),
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`https://www.estuarypartnership.org/sites/default/files/resource_files/WaterSalmonReport.pdf.
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` People who eat fish from the lower Columbia over a long period of time are exposed to
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`health risks from arsenic, PCBs, dioxins and furans, and DDT and its breakdown
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`products.9
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`35.
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`Other studies have confirmed and added to the overwhelming scientific evidence
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`on toxic contamination in the Columbia River Basin.10
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`36.
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`The pollution discharges that are the subject of this complaint contribute to the
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`pollution crisis on the Columbia River. According to the National Oceanic & Atmospheric
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`Administration (“NOAA”):
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`Spilled oil can harm living things because its chemical constituents are poisonous.
`This can affect organisms both from internal exposure to oil through ingestion or
`inhalation and from external exposure through skin and eye irritation. Oil can also
`smother some small species of fish or invertebrates and coat feathers and fur,
`reducing birds’ and mammals’ ability to maintain their body temperatures.11
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`37.
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`In addition to toxic pollution, the Dams that are the subject of this complaint
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`cause and discharge significant heat pollution into the Columbia River. The Dam’s heat pollution
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`severely impacts threatened and endangered populations of salmon and steelhead in the
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`Columbia River basin, as well as the tribal, recreational, and commercial fisheries and economies
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`that Columbia River salmon and steelhead support.
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`                                                       
`9 Id. at 5–6.
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`10 Id. at 6 (citing studies by U.S. Geological Surv., the U.S. Army Corps of Engineers, Oregon
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`Dept. of Env’t Quality, and others); see generally STATE OF THE RIVER REPORT.
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`11 NOAA, Office of Response and Restoration, How Oil Harms Animals and Plants in Marine
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`Environments, http://response.restoration.noaa.gov/oil-and-chemical-spills/oil-spills/how-oil-
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`harms-animals-and-plants-marine-environments.html.
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`38.
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`Recognizing this problem, DEQ listed the lower Columbia River under section
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`303(d) of the CWA, 33 U.S.C. § 1313(d), as not meeting water quality standards for temperature
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`needed to support salmon migration.
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`39.
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`EPA completed a TMDL for the Columbia and Lower Snake Rivers on August
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`13, 2021. See Columbia and Lower Snake Rivers Temperature Total Maximum Daily Load, EPA
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`Region 10 (Aug. 13, 2021). EPA’s TMDL concluded that hydroelectric dams on these rivers are
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`a primary cause of heat pollution in the Columbia River. The TMDL assigns temperature/heat
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`wasteload allocations to nine of the Corps’ hydroelectric dams on the Columbia and Snake
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`Rivers, including the Dams that are the subject of this complaint. As discussed above, such
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`wasteload allocations included in a TMDL are not self-implementing but are instead
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`implemented through NPDES permits issued under section 402 of the CWA, 33 U.S.C. § 1342,
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`and/or certifications issued under section 401 of the CWA, 33 U.S.C. § 1341.
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`40.
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`This last summer of 2021, as in previous years, heat pollution from the
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`hydroelectric dams on the Columbia and Snake Rivers, including the Dams subject to this
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`complaint, caused sockeye salmon to sicken and die prematurely in the Lower Columbia River
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`rather than successfully migrating upstream to their spawning grounds.
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`41.
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`The vicinity of the Dams subject to this complaint and the Columbia River are
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`used by Oregon citizens and visitors, as well as by Columbia Riverkeeper’s members, for
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`recreational activities, including boating, biking, fishing, and nature watching. Columbia
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`Riverkeeper’s members also derive aesthetic benefits from the receiving waters. Columbia
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`Riverkeeper’s members’ enjoyment of these activities and waters is diminished by the polluted
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`state of the receiving waters, shorelines, air, the nearby areas, and by the Corps’ contributions to
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`such polluted state.
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`COMPLAINT
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 14 of 31
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`B.
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`Columbia Riverkeeper’s Prior Citizen Suit and the Corps’ Response.
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`42.
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`Columbia Riverkeeper filed three CWA citizen suits, which were subsequently
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`consolidated, against the Corps in 2013 for unpermitted discharges of pollutants from eight
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`hydroelectric dams on the Columbia and Snake Rivers, including the two Dams subject to this
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`complaint. See E.D. Wash. No. 2:13-md-02494-LRS. The parties resolved that litigation with a
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`settlement agreement, which the District Court for the Eastern District of Washington approved
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`on August 14, 2014 (“Settlement Agreement”). See E.D. Wash. No. 2:13-md-02494-LRS,
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`Settlement Agreement, Dkt. 40 (Aug. 14, 2014). Under the Settlement Agreement, the Corps
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`agreed to seek the required NPDES permits and take other actions to reduce its water quality
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`impacts. See id. at pp. 5–9. Columbia Riverkeeper agreed to refrain from further litigation related
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`to the illegal discharges for a seven-year period to allow the Corps time to secure the necessary
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`NPDES permits. Id. at pp. 10–11.
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`43.
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`In 2015, the Corps submitted NPDES permit applications to EPA for discharges
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`to Washington State waters from the eight hydroelectric dams subject to the Settlement
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`Agreement, including the Dams subject to this complaint; the Corps submitted supplemental
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`application materials in 2018.
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`44.
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`In March 2020, EPA issued draft NPDES permits for discharges to Washington
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`State waters from the eight hydroelectric dams subject to the Settlement Agreement, including
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`the Dams subject to this complaint. EPA also requested that the Washington State Department of
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`Ecology issue certifications under section 401 of the CWA, 33 U.S.C. § 1341, for those NPDES
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`permits.
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`45.
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`On May 7, 2020, the Washington State Department of Ecology issued final
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`certifications under section 401 of the CWA, 33 U.S.C. § 1341, for EPA’s NPDES permits for
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`COMPLAINT
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 15 of 31
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`discharges to Washington State waters from the eight hydroelectric dams subject to the
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`Settlement Agreement, including the Dams subject to this complaint. The Washington State
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`Department of Ecology’s certifications require that the Corps’ hydroelectric dams meet the
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`temperature wasteload allocations set in the Columbia and Lower Snake Rivers Temperature
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`TMDL.
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`46.
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`In January 2021, EPA issued revised draft NPDES permits for discharges to
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`Washington State waters from the eight hydroelectric dams subject to the Settlement Agreement,
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`including the Dams subject to this complaint. Those revised NPDES permits included limits to
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`incorporate the wasteload allocations from the Columbia and Lower Snake Rivers Temperature
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`TMDL, as required by the Washington State Department of Ecology in its certification issued
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`under section 401 of the CWA, 33 U.S.C. § 1341.
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`47.
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`On September 30, 2021, EPA issued final NPDES permits for discharges to
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`Washington State waters from four of the hydroelectric dams subject to the Settlement
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`Agreement—Ice Harbor, Lower Monumental, Little Goose, and Lower Granite Dams. Those
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`NPDES permits require that the Corps meet the wasteload allocations from the Columbia and
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`Lower Snake Rivers Temperature TMDL, as required by the Washington State Department of
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`Ecology in its certification issued under section 401 of the CWA, 33 U.S.C. § 1341.
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`48.
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`EPA has yet to issue final NPDES permits authorizing discharges of pollutants to
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`Washington State waters from the Dams subject to this complaint. DEQ has not issued NPDES
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`permits authorizing discharges of pollutants to Oregon State waters from the Dams subject to this
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`complaint.
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`C.
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`The Corps’ Dams and Discharges of Pollutants.
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`49.
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`The Corps owns and operates the hydroelectric Dams on the Columbia River.
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`COMPLAINT
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 16 of 31
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`50.
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`John Day Dam is located on the Columbia River near the city of Rufus, Oregon.
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`John Day Dam is partially located within Sherman County, Oregon. The discharges of pollutants
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`to the Columbia River from John Day Dam that are the subject of this complaint are made to
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`waters located within Sherman County, Oregon.12 The Columbia River is a navigable water body
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`at the location of the John Day Dam.
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`51. McNary Dam is located on the Columbia River near the city of Umatilla, Oregon.
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`McNary Dam is partially located within Umatilla County, Oregon. The discharges of pollutants
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`to the Columbia River from McNary Dam that are the subject of this complaint are made to
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`waters located within Umatilla County, Oregon.13 The Columbia River is a navigable water body
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`at the location of the McNary Dam.
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`52.
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`The Dams use Kaplan turbines, which have variable pitch blades that can be
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`adjusted to increase efficiency. The shafts and hubs of these turbines are filled with oil or another
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`lubricant. This oil or lubricant leaks to surface waters from certain locations, including the
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`turbine blade packing/seals, especially when the turbines are not properly maintained and/or
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`12 The Corps also discharges pollutants to the Columbia River from John Day Dam to waters
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`located within Klickitat County, Washington. Those discharges are not subject to this complaint
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`but are the subject of a separate complaint being filed by Columbia Riverkeeper in the District
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`Court for the Eastern District of Washington.
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`13 The Corps also discharges pollutants to the Columbia River from McNary Dam to waters
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`located within Benton County, Washington. Those discharges are not subject to this complaint
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`but are the subject of a separate complaint being filed by Columbia Riverkeeper in the District
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`Court for the Eastern District of Washington.
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`COMPLAINT
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 17 of 31
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`operationally controlled. Available information indicates that the Corps has not properly
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`maintained and/or operationally controlled the Kaplan turbines on the Dams in a manner to
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`prevent or minimize discharges.
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`53.
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`Upon information and belief, the Corps discharges oil or lubricant from each of
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`the Kaplan turbines at the Dams each and every day. These discharges are not authorized by
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`NPDES permits and violate the CWA. These violations of the CWA have occurred each and
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`every day since August 14, 2021 and are continuing to occur or are reasonably likely to reoccur.
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`54. Wicket gates control the amount of water flowing through the turbines at the
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`Dams. The wicket gate bearings are lubricated with grease or another lubricant. This grease or
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`lubricant is fed continuously into the bearings and discharged into surface waters.
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`55.
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`Upon information and belief, the Corps discharges grease or another lubricant
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`from the bearings at each of the turbine wicket gates at the Dams each and every day. These
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`discharges are not authorized by NPDES permits and violate the CWA. These violations of the
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`CWA have occurred each and every day since August 14, 2021, and are continuing to occur or
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`are reasonably likely to reoccur.
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`56.
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`Upon information and belief, the Corps discharges oils, greases, lubricants, and
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`other pollutants at the Dams collected from various sources through sumps, including
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`powerhouse drainage sumps, un-watering sumps, spillway sumps, navigation lock sumps, and
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`other systems. These discharges are not authorized by NPDES permits and violate the CWA.
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`These violations of the CWA have occurred each and every day since August 14, 2021, that the
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`Corps made the discharges and are continuing to occur or are reasonably likely to reoccur.
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`57.
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`Upon information and belief, the Corps discharges cooling water, and the heat
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`associated therewith, at the Dams that has been used to cool a variety of Dam components and
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`COMPLAINT
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`Case 2:21-cv-01777-HL Document 1 Filed 12/08/21 Page 18 of 31
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`materials, including turbines, generators, transformers, and lubricating oils. These discharges are
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`not authorized by NPDES permits and violate the CWA. These violations of the CWA have
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`occurred each and every day since August 14, 2021, and are contin