Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 1 of 45
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`Paul Kampmeier, WSBA #31560
`Kampmeier & Knutsen, PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`Phone: (206) 858-6983
`Email: paul@kampmeierknutsen.com
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`Attorney for Plaintiffs Citizens for a Healthy Bay
`and Puget Soundkeeper Alliance
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`Katelyn Kinn, WSBA #42686
`Puget Soundkeeper Alliance
`130 Nickerson Street, Suite 107
`Seattle, Washington 98109
`Phone: (206) 297-7002
`Email: katelyn@pugetsoundkeeper.org
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`Attorney for Plaintiff Puget Soundkeeper Alliance
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`INTRODUCTION.
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`CITIZENS FOR A HEALTHY BAY, and
`PUGET SOUNDKEEPER ALLIANCE,
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` Plaintiffs,
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` v.
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`ELECTRON HYDRO, LLC,
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` Defendant.
`___________________________________
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`Case No. 2:21-cv-319
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`COMPLAINT
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`I.
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`1.
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`Plaintiffs Citizens for a Healthy Bay (“CHB”) and Puget Soundkeeper Alliance
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`(“PSA”) (collectively, “the Conservation Groups”) bring this lawsuit under Section 505 of the
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`Clean Water Act, 33 U.S.C. § 1365. Defendant Electron Hydro, LLC (“Electron” or
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`“Defendant”) owns and operates a hydroelectric dam on the Puyallup River in Washington State.
`Kampmeier & Knutsen PLLC
`COMPLAINT - 1
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`811 First Avenue, Suite 468
`W.D. Wash. Case No. 2:21-cv-319
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`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 2 of 45
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`The Conservation Groups allege Electron is in ongoing violation of the Clean Water Act because
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`it is conducting activities and discharging pollutants and dredged or fill material to waters of the
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`United States in violation of the terms and conditions of a certification made under Section 401
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`of the Clean Water Ac, 33 U.S.C. § 1341 (“401 Certification”), and because it violating Section
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`301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), by discharging heat, other pollutants, and
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`dredged or fill material to the Puyallup River without authorization of the required permits. The
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`Conservation Groups seek declaratory and injunctive relief, the imposition of civil penalties, and
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`an award of costs, including attorneys’ and expert witness fees, for Electron’s repeated and
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`ongoing violations of the Clean Water Act (“CWA” or “Act”).
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`II.
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`JURISDICTION AND VENUE.
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`2.
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`This Court has jurisdiction pursuant to 33 U.S.C. § 1365 (CWA citizen suit
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`provision) and 28 U.S.C. § 1331 (federal question). Defendant is in ongoing violation of an
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`“effluent standard or limitation” as defined by Section 505 of the Act, 33 U.S.C. § 1365. The
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`requested relief is proper under 28 U.S.C. §§ 2201 and 2202 and 33 U.S.C. § 1365.
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`3.
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`The Conservation Groups satisfied the jurisdictional requirements for bringing
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`this lawsuit. Under Section 505(b)(1)(A) of the Act, 33 U.S.C. § 1365(b)(1)(A), by certified
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`letter dated and postmarked October 28, 2020, the Conservation Groups notified Defendant and
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`its registered agent of Defendant’s alleged violations of the Act and of the Conservation Group’s
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`intent to sue for those violations (“Notice Letter”). The Conservation Groups also notified the
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`Administrator of the U.S. Environmental Protection Agency (“EPA”), the Administrator of EPA
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`Region 10, and the Director of the Washington State Department of Ecology (“Ecology”) of its
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`intent to sue Defendant by mailing a copy of the Notice Letter to those officials on October 28,
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`2020. A copy of the Notice Letter is attached to this complaint as Exhibit 1.
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`COMPLAINT - 2
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 3 of 45
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`4.
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`More than sixty days have passed since the Conservation Groups mailed the
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`Notice Letter and the violations complained of are continuing or reasonably likely to continue to
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`occur. Neither the EPA nor Ecology has commenced any action constituting diligent prosecution
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`to redress the violations alleged herein. Defendant is in ongoing violation of the CWA.
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`5.
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`Venue is appropriate in this District under Section 505(c)(1) of the Act, 33 U.S.C.
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`§ 1365(c)(1), because the source of the violations complained of is located in this District, in
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`Pierce County, Washington.
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`6.
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`A copy of this Complaint will be served on the Attorney General of the United
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`States, the Administrator of the EPA, and the Administrator of EPA Region 10, as required by 33
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`U.S.C. § 1365(c)(3) and 40 C.F.R. § 135.4.
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`III.
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`PARTIES.
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`7.
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`Citizens for a Healthy Bay has standing for the relief sought herein. CHB brings
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`this complaint on behalf of itself and its member(s). CHB is a non-profit corporation organized
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`under Section 501(c)(3) of the Internal Revenue Code and registered in the State of Washington.
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`CHB’s principal place of business is in Tacoma, Washington. CHB is dedicated to protecting and
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`preserving the natural environmental in western Washington State, including protecting the
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`Puyallup River, Puget Sound, their tributaries, and the aquatic species that use and rely on those
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`waters for habitat and sustenance.
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`8.
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`CHB has representational standing to bring this action. CHB is a membership
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`organization with members who are injured by Electron’s violations of the CWA. CHB has at
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`least one member who lives, works, recreates, observes, or enjoys surface waters, fish, or
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`wildlife, within the watersheds impacted by Electron’s dam and activities, including the Puyallup
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`River, Commencement Bay and South Puget Sound. One or more of CHB’s members are
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`COMPLAINT - 3
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 4 of 45
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`reasonably concerned about the effects pollutant discharges from Electron’s facility are having
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`on the water quality and aquatic species and wildlife that they observe, study, use, or enjoy.
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`CHB’s members are also concerned about the effects of discharges from Electron’s facility on
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`human health.
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`9.
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`Puget Soundkeeper Alliance has standing for the relief sought herein. PSA brings
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`this complaint on behalf of itself and its member(s). PSA is a non-profit corporation organized
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`under Section 501(c)(3) of the Internal Revenue Code and the laws of the State of Washington.
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`PSA’s principal place of business is in Seattle, Washington. PSA is dedicated to protecting and
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`enhancing the waters of Puget Sound for the health and restoration of aquatic ecosystems and the
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`communities that depend on them. PSA has for years been actively engaged in a variety of
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`educational and advocacy efforts to improve water quality and to address sources of water
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`quality degradation in the waters of western Washington, including the Puyallup River,
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`Commencement Bay, and Puget Sound. PSA has taken legal action against more than 170
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`alleged CWA violators; engaged over 18,000 volunteers in cleanups, outreach events, and
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`advocacy; and removed more than 145,000 pounds of marine debris from the waterways around
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`Puget Sound. PSA’s work covers not only the marine waters of Puget Sound, but also its
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`freshwater tributaries including the Puyallup River.
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`10.
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`PSA has representational standing to bring this action. PSA is a membership
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`organization with members who are injured by Electron’s violations of the CWA. PSA has at
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`least one member who lives, works, recreates, observes, or enjoys surface waters, fish, or
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`wildlife, within the watersheds impacted by Electron’s Facility and activities, including the
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`Puyallup River, Commencement Bay and South Puget Sound. One or more of PSA’s members
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`are reasonably concerned about the effects pollutant discharges from Electron’s facility are
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`COMPLAINT - 4
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 5 of 45
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`having on the water quality and aquatic species and wildlife that they observe, study, use, or
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`enjoy. PSA’s members are also concerned about the effects of discharges from Electron’s facility
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`on human health.
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`11.
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`The environmental, recreational, scientific, economic, aesthetic, cultural, spiritual,
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`and/or health interests of the Conservation Groups and its members have been, are being, and will
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`be adversely affected by Electron’s discharges of pollutants and violations of the CWA.
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`Discharges from Electron’s facility, and violations of the CWA at Electron’s facility, adversely
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`impact the Conservation Groups’ and their members’ aesthetic, recreational, scientific, spiritual,
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`and other interests in the Puyallup River, Commencement Bay, and Puget Sound by impairing or
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`threatening to impair those waters and the species that rely on those waters. The Conservation
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`Groups’ members’ uses of the impacted watersheds are thereby adversely affected and also
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`suppressed. These injuries are fairly traceable to Electron’s dam and activities and the relief sought
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`in this lawsuit can redress these injuries to the Conservation Groups’ and their members’
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`interests.
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`12.
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`The Conservation Groups also have organizational standing to bring this action.
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`Both Conservation Groups have been actively engaged in a variety of educational and advocacy
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`efforts to improve water quality and to address sources of water quality degradation in the waters
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`of western Washington, including the Puyallup River, Commencement Bay and South Puget
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`Sound. As alleged herein and in the Notice Letter, Electron has discharged various materials and
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`taken actions without first obtaining the required permits or authorizations. Those permits and
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`authorizations likely would have required important monitoring, record keeping, inspection, and
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`reporting requirements. As a result, the Conservation Groups have been deprived of information
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`necessary to properly serve its members by providing information and taking appropriate action
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`COMPLAINT - 5
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 6 of 45
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`to advance its mission. The Conservation Groups’ efforts to educate and advocate for greater
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`environmental protection, and to ensure the success of environmental restoration projects
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`implemented for the benefit of its members, are also frustrated. Finally, the Conservation Groups
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`and the public have been deprived of information that influences members of the public to
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`become members of PSA or CHB, thereby potentially reducing those groups’ membership
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`numbers. Thus, the Conservation Groups’ organizational interests have been adversely affected
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`by Electron’s violations. These injuries are fairly traceable to Electron’s violations and are
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`redressable by the Court.
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`13.
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`Electron Hydro, LLC is a corporation authorized to conduct business under the
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`laws of the State of Washington. Electron owns and operates a hydroelectric dam facility at or
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`near 29711 Kapowsin-Electron Reservoir Road, Orting, Washington 98360, between Puyallup
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`River miles 41.3 and 31, including a diversion structure, fish ladder, flume, settling basin,
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`forebay or reservoir, penstocks, powerhouse, and other related facilities (hereinafter “the
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`Facility”). Defendant and its Facility discharge pollutants and dredged or fill material to the
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`Puyallup River, which is tributary to Puget Sound.
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`IV. LEGAL BACKGROUND.
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`14.
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`Congress enacted the Clean Water Act to “restore and maintain the chemical,
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`physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`15.
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`As relevant here, Section 301(a) of the CWA, 33 U.S.C. § 1311(a), prohibits the
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`discharge of pollutants by any person unless such discharge is authorized by a National Pollutant
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`Discharge Elimination System (“NPDES”) permit issued pursuant to section 402 of the Act or, if
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`the discharge is of dredged or fill material, a permit issued pursuant to section 404 of the Act
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`(“Section 404 Permit”). See 33 U.S.C. §§ 1311(a), 1342, 1344.
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`COMPLAINT - 6
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 7 of 45
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`16.
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`The Act defines the term “discharge of a pollutant” to mean, in part, “any addition
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`of any pollutant to navigable waters from any point source . . . .” 33 U.S.C. § 1362(12).
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`17.
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`The Act defines the term “point source” to mean, in part, “any discernible,
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`confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel,
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`conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or
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`vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C.
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`§ 1362(14).
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`18.
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`The Act defines the term “pollutant” to mean, in part, “dredged spoil, solid waste,
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`incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological
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`materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and
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`industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C. § 1362(6).
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`19.
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`The Act’s prohibition on discharging pollutants from point sources applies
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`broadly. The Act defines the term “navigable waters” to mean “the waters of the United States,
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`including the territorial seas.” 33 U.S.C. § 1362(7). And the Act defines the term “person” to
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`mean “an individual, corporation, partnership, association, State, municipality, commission, or
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`political subdivision of a State, or any interstate body.” 33 U.S.C. § 1362(5).
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`20.
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`Section 404 of the Act authorizes the U.S. Army Corps of Engineers (“the
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`Corps”) to issue Section 404 Permits authorizing discharges of dredged or fill materials to waters
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`of the United States. See 33 U.S.C. § 1344. As part of this program, the Corps issues nationwide
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`permits that authorize discharges of dredged or fill material associated with certain common
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`activities, including dam maintenance and stream bank stabilization. The Corps announced
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`reissuance of its nationwide permits in January 2017. See 82 Fed. Reg. 1860. After the
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`COMPLAINT - 7
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 8 of 45
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`publication of the final nationwide permits, the Corps’ Seattle district imposed regional
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`conditions that apply to activities covered by nationwide permits conducted within that district.
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`21.
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`Section 401 of the Act, 33 U.S.C. § 1341, requires any applicant for a federal
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`license or permit to conduct any activity, including but not limited to the construction or
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`operation of facilities that may result in any discharge into the navigable waters, to provide the
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`permitting agency with a certification from the State in which the discharge originates that any
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`such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and
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`307 of the CWA. On March 6, 2017, Ecology issued 401 Certifications for the Corps’
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`nationwide permits 3 and 13. Ecology’s 401 Certifications apply to and limit activities and
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`discharges authorized by the Corps’ nationwide permits, including nationwide permits 3 and 13.
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`22.
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`Ecology’s 401 Certification conditions require dischargers to apply for and obtain
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`a site-specific 401 Certification from Ecology under certain conditions, including: if the project
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`would cause, or may be likely to cause or contribute to, an exceedance of a state water quality
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`standard or sediment management standard; if the project or activity will occur in a CWA section
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`303(d) listed segment of a waterbody or upstream of a listed segment and may result in further
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`exceedances of the specific listed parameter; if the project or activities are below the ordinary
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`high water mark with new work being proposed outside the original footprint; for any project or
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`activity with temporary fill in waters of the state for more than 90 days, unless the applicant has
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`received written approval from Ecology; or if the project or activity includes adding a new
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`structure to the site.
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`23.
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`For projects requiring a site-specific 401 Certification from Ecology, applicants
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`must apply to Ecology and provide: (a) a description of the project, including site plans, project
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`purpose, direct and indirect adverse environmental effects the project would cause, best
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`COMPLAINT - 8
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 9 of 45
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`management practices, and any other Department of the Army or federal agency permits used or
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`intended to be used to authorize any part of the proposed project or any related activity; (b)
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`drawings indicating the Ordinary High Water Mark, delineation of special aquatic sites and other
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`waters of the state, including wetlands; (c) a statement describing how the mitigation
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`requirement will be satisfied, including an explanation of how the applicant has followed the
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`mitigation sequence and have first avoided and minimized impacts to aquatic resources wherever
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`practicable; (d) information demonstrating compliance with other applicable requirements of the
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`Corps’ Nationwide Permit General Condition 32, the Corps’ Regional Conditions, or notification
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`conditions of the applicable nationwide permit.
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`24.
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`Ecology’s March 6, 2017 401 Certification for the Corps’ nationwide permits 3
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`and 13 also requires all projects that involve land disturbance to obtain and implement all
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`required permits.
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`25.
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`Discharging pollutants without the required permits, or in violation of a 401
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`Certification, constitutes a violation of the Clean Water Act and is grounds for a citizen
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`enforcement action. 33 U.S.C. §§ 1365(a)(1), (f).
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`V.
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`FACTS.
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`A.
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`26.
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`Electron Discharged Artificial Field Turf and Plastic Liner to the Puyallup River.
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`Electron’s Facility includes a wooden flow diversion structure, a spillway, a water
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`intake, a 10-mile long flume that conveys diverted water to a forebay, penstocks, and a
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`powerhouse for electricity generation.
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`27.
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`Electron planned and proposed the Electron Hydro Diversion Repair and Spillway
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`Replacement Project (“the Project”), which includes construction to repair the wooden diversion
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`structure, replace the spillway, and reinforce existing shoreline protection infrastructure at the
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`COMPLAINT - 9
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 10 of 45
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`Facility.
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`28.
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`In 2016 or 2017, Electron applied to the Corps for Section 404 Permits to
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`authorize discharges of dredged or fill material associated with Electron’s proposed work to
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`repair the diversion structure, reinforce the shoreline protection, and construct an inflatable
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`bladder spillway.
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`29.
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`The Corps issued Electron Section 404 Permits for that work on August 8, 2018.
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`The Corps authorized Electron’s work pursuant to Nationwide Permit 3 and Nationwide Permit
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`13, subject to certain special conditions.
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`30.
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`Electron completed the upstream shoreline protection work at the Facility during
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`the summer of 2018. Electron completed the downstream shoreline protection work at the
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`Facility during the summer of 2019.
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`31.
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`In the summer of 2020 Electron began construction of the bladder spillway. In the
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`summer of 2020, Electron constructed a temporary bypass channel to divert Puyallup River flow
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`around the expected in-water work area at the diversion spillway site.
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`32.
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`Between July 20 and July 27, 2020, Electron dewatered the bypass channel for
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`construction work and placed approximately 2,409 square yards of artificial field turf into the
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`bypass channel, along with the plastic liner, to keep the channel dry and to facilitate its
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`construction activities. The artificial field turf was waste from another facility.
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`33.
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`Electron did not inform the Corps before it used field turf and plastic liner in the
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`bypass channel at its Facility. Electron’s use of the field turf was not authorized by any CWA
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`permit for the Project.
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`34.
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`Electron diverted Puyallup River flow into the bypass channel on or about July
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`28, 2020.
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`COMPLAINT - 10
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`W.D. Wash. Case No. 2:21-cv-319
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 11 of 45
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`35.
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`On or around July 29 or July 30, 2020, the Puyallup River broke the artificial field
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`turf and plastic liner loose and sent approximately 617 square yards of field turf and pieces of
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`plastic liner, and at least four to six cubic yards of rubber turf crumb, down the Puyallup River.
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`After those materials broke loose, approximately 1,792 square yards of plastic liner and field turf
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`remained in place in the bypass channel.
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`36.
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`Electron did not notify regulators of the discharges of artificial field turf, plastic
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`liner, and rubber crumb until August 4, 2020.
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`B.
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`After Discharging Field Turf and Plastic Liner to the Puyallup River, Electron
`Performed In-Water Construction and Maintenance Work That Was Not
`Authorized by Permits or the CWA.
`
`37.
`
`On August 5, 2020, Pierce County issued a stop work order and imposed
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`
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`conditions on Electron. On August 7, 2020, the Corps issued a stop work order, explained that
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`the deposit of the field turf was not authorized by the existing permits for the Project, and
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`demanded additional information from Electron. The Corps specifically noted that “the in water
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`work is being done without the proper installation of best management practices such as a
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`temporary berm and cofferdam.”
`
`38.
`
`By letter dated September 11, 2020, Pierce County requested that Electron
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`complete a list of work to stabilize the site, to minimize potential effects to water quality and fish
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`species within the Puyallup River, and to regain fish passage at the project site. The work
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`requested in Pierce County’s September 11, 2020 letter required extensive work in the river
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`channel, including removal of partially buried concrete culverts placed vertically and filled with
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`rubble located in bladder dam foundation area and being used at the time as a coffer structure;
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`securing the wooden diversion structure; placing heavy rounded rip-rap at the outlet of the fish
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`ladder; removing Conex boxes from the river channel; removing all artificial turf and plastic
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`COMPLAINT - 11
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`W.D. Wash. Case No. 2:21-cv-319
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`
`
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`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
`
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 12 of 45
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`liner from the bypass channel; placing super-sacks at the top of the channel to redirect river flow;
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`and removing concrete culverts, debris, and other construction related materials from the active
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`river channel. Most or all of that work was not authorized by Electron’s CWA permits for the
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`Project. The County’s September 11, 2020 letter noted this, requiring Electron “to prepare a new
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`plan for permits that outlines a responsible construction sequence” that all permitting agencies
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`needed to approve, and to initiate consultation under the federal Endangered Species Act.
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`39.
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`By letter dated September 12, 2020, the Corps authorized implementation of the
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`work listed in Pierce County’s September 11, 2020 letter to Electron. The Corps’ September 12,
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`2020 letter states: “Although we are authorizing the implementation of the activities described in
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`the Pierce County letter dated September 11, 2020, it is important to note this letter is not a
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`permit.”
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`40.
`
`By letter dated September 28, 2020, Electron sought an extension of the in-water
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`work period through October 28, 2020. Electron’s September 28, 2020 letter listed a series of
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`projects requiring work in the Puyallup River, including work to maintain proper pool step
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`heights at the fish ladder; maintaining an effective cofferdam barrier to separate work areas from
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`open river flow; construction of a concrete abutment wall; construction of a temporary rock fill
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`diversion and spillway fill that Electron expected would remain in place until the summer of
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`2021; construction of cofferdams in the Puyallup River; construction of fish ladder facilities and
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`pool steps; fish protection measures during transfer; restoring river gravel bar surfaces to prevent
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`stranding; and the use of heavy machinery in the Puyallup River during construction and
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`maintenance activities.
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`COMPLAINT - 12
`
`W.D. Wash. Case No. 2:21-cv-319
`
`
`
`
`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
`
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 13 of 45
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`41.
`
`By letter dated September 30, 2020, the Corps approved Electron’s request for an
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`extension of the in-water work period through October 28, 2020. In doing so, the Corps again
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`stated, “it is important to note this letter is not a permit.”
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`42.
`
`After July 30, 2020, Electron constructed a concrete abutment wall in the
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`Puyallup River at the Facility. Electron’s construction of a concrete abutment wall in the
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`Puyallup River at the Facility resulted in or constituted the discharge of dredged or fill material
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`to waters of the United States.
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`43.
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`After July 30, 2020, Electron constructed a rock diversion structure in the
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`Puyallup River. Electron’s construction of a rock diversion structure in the Puyallup River at the
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`Facility resulted in or constituted the discharge of dredged or fill material to waters of the United
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`States. After July 30, 2020, Electron discharged new fill material at the Facility’s diversion
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`structure in the Puyallup River. Electron’s discharge of new fill material at the Facility’s
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`diversion structure in the Puyallup River resulted in or constituted the discharge of dredged or
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`fill material to waters of the United States.
`
`44.
`
`After July 30, 2020, Electron constructed temporary or permanent cofferdams at
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`the Facility in the Puyallup River. Electron’s construction of temporary or permanent cofferdams
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`in the Puyallup River at the Facility resulted in or constituted the discharge of dredged or fill
`
`material to waters of the United States.
`
`45.
`
`After July 30, 2020, Electron used heavy machinery during construction and
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`maintenance work at the Facility in the Puyallup River, including when Electron worked on the
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`fish ladder at the Facility and when it removed partially buried concrete culverts placed in the
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`proposed bladder dam foundation area at the Facility. These activities resulted in or constituted
`
`the discharge of dredged or fill materials to waters of the United States.
`
`COMPLAINT - 13
`
`W.D. Wash. Case No. 2:21-cv-319
`
`
`
`
`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
`
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 14 of 45
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`46.
`
`After July 30, 2020, Electron placed large rocks in the Puyallup River at the fish
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`ladder at the Facility. Electron’s placement of large rocks in the Puyallup River at the fish ladder
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`at the Facility resulted in or constituted the discharge of dredged or fill materials to waters of the
`
`United States.
`
`47.
`
`After July 30, 2020, Electron removed Conex boxes from the Puyallup River.
`
`Electron’s removal of Conex boxes from the Puyallup River resulted in or constituted the
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`discharge of dredged or fill materials to waters of the United States. On information and belief,
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`after July 30, 2020, Electron discharged new fill material near the Facility’s diversion structure
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`in the Puyallup River. Electron’s discharge of new fill material near the Facility’s diversion
`
`structure in the Puyallup River resulted in or constituted the discharge of dredged or fill material
`
`to waters of the United States.
`
`48.
`
`After July 30, 2020, Electron used heavy machinery to remove artificial field turf
`
`and plastic liner from the bypass channel in the Puyallup River. Electron’s use of heavy
`
`machinery to remove artificial field turf and plastic liner from the bypass channel in the Puyallup
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`River resulted in or constituted the discharge of dredged or fill materials to waters of the United
`
`States.
`
`49.
`
`On information and belief, after July 30, 2020, Electron placed super-sacks in the
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`Puyallup River to redirect river flow. Electron’s placement of super-sacks in the Puyallup River
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`to redirect river flow resulted in or constituted the discharge of dredged or fill materials to waters
`
`of the United States.
`
`50.
`
`After July 30, 2020, Electron removed concrete culverts, debris, and other
`
`construction materials from the Puyallup River. Electron’s removal or concrete culverts, debris,
`
`and other construction materials from the Puyallup River resulted in or constituted the discharge
`
`COMPLAINT - 14
`
`W.D. Wash. Case No. 2:21-cv-319
`
`
`
`
`Kampmeier & Knutsen PLLC
`811 First Avenue, Suite 468
`Seattle, Washington 98104
`(206) 858-6983
`
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`Case 2:21-cv-00319 Document 1 Filed 03/09/21 Page 15 of 45
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`of dredged or fill materials to waters of the United States.
`
`51.
`
`None of Electron’s discharges of dredged or fill materials to waters of the United
`
`States that occurred at the Facility after July 30, 2020 pursuant to Pierce County’s September 11,
`
`2020 letter was authorized by a Section 404 Permit. Those discharges violated and are in
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`violation of the CWA and are ongoing. Additionally, there is a reasonable likelihood that
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`Electron will again discharge pollutants or dredged or fill material in violation of the CWA
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`because Electron still has in-river work to do to complete the Project.
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`C.
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`
`52.
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`Electron Violated and Is Violating Section 401 of the CWA by Failing to
`Implement Its Permits and by Failing to Apply for and Obtain a Site-Specific 401
`Certification.
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`Electron’s construction work and other activities in the Puyallup River after July
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`30, 2020 violate the terms and conditions of the 401 Certifications applicable to nationwide
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`permits 3 and 13 because Electron failed to implement and violated its CWA permits for the
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`Project.
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`53.
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`Electron is in violation of the 401 Certificatio