PORTLAND, Ore. – For the first time in its history, the U.S. Army Corps of Engineers will have to disclose the amount of pollutants its dams are sending into waterways in a groundbreaking legal settlement that could have broad implications for the Corps’ hundreds of dams nationwide.
The Corps announced in a settlement Monday that it will immediately notify the conservation group that filed the lawsuit of any oil spills among its eight dams on the Columbia and Snake rivers in Oregon and Washington.
The Corps also will apply to the Environmental Protection Agency for pollution permits, something the Corps has never done for the dams on the Columbia and Snake rivers.
The settlement filed in U.S. District Court in Portland ends the year-old consolidated lawsuit by the conservation group Columbia Riverkeeper, which said the Corps violated the Clean Water Act with unmonitored, unpermitted oil discharges from the eight hydroelectric dams.
No one outside the Corps knows how much pollution is being flushed into waterways every day. The agency doesn’t have to track it and, before Monday, no one with sufficient authority compelled them to do so.
The settlement reflects the recent tack of the EPA regulating the environmental impacts of energy. The agency recently came up with regulations of mountaintop removal for coal and fracking for oil and gas.
As part of the settlement, the Corps admits no wrongdoing but will pay $143,000 in attorneys’ fees. The consolidated cases were dismissed.
“This is the right thing to do,” said Brett VandenHeuvel, Columbia Riverkeeper’s executive director. “There have been several large, high-profile spills in the last decade that made it harder for them to ignore this issue of oil on the river.”
The Corps’ Northwest and national offices on Monday referred questions to the U.S. Department of Justice, whose attorneys negotiated the settlement.
Justice Department attorney Wyn Hornbuckle indicated the agreement applies to the eight dams in question, but he did not immediately respond to follow-up questions concerning the national impact of the deal.
The settlement will allow oversight of the dams by the EPA, a responsibility the agency has sought but never obtained. EPA representatives did not immediately return messages or emails seeking comment.
The EPA had the authority to regulate the dams’ pollution before the settlement, but it could not compel the Corps to file for a pollution permit. The Corps also will be forced to switch to a biodegradable lubricant for its dam machinery if an internal study finds it financially feasible.
The Corps isn’t just a polluter, however. It also is a regulator of pollution under the Clean Water Act. The act grants the Corps the authority to issue permits for the discharge of materials excavated from or put into U.S. waterways.
“Under the letter of the law, they have been engaged in unpermitted discharge for years,” said Melissa Powers, an environmental law professor at Lewis & Clark Law School in Portland. “They should have long ago said, ‘This is how much we’re discharging. Here are the environmental impacts.’”
Monday’s settlement will force the Corps’ hand. To discharge pollutants into waterways, the polluters must obtain permission from state and federal governments. Before the settlement, the EPA knew about the unpermitted discharges from the dams, but the Corps said in letters to state agencies that it is not accountable to the EPA.
The Corps argued in the same letters that disclosing the mechanical workings of the dams as part of an oil-discharge summary could compromise their security.
The Corps doesn’t have to report its day-to-day pollution, but it must report spills. That’s what happened in January 2012, when it detected slow leaks of 1,500 gallons of oil from its Ice Harbor dam into the Snake River near Pasco, Washington. The spill included toxic PCBs, an industrial insulator that has been shown to be harmful to humans.
In July 2013, Columbia Riverkeeper sued and demanded to know what the Corps was sending into the water and how much of it was going in.
“When you’re not regulated under a permit, you don’t have to say what the impact (of pollution) on water was,” Powers said.
Nationally, the settlement could force all unpermitted dams to obtain National Pollutant Discharge Elimination System permits from the EPA.
The eight dams affected by the settlement are the Bonneville, the John Day, The Dalles and McNary in Oregon and the Ice Harbor, Lower Monumental, Little Goose and Lower Granite in Washington state.
Environmentalists will closely watch the type of permit issued by the EPA, Powers said. A “site-specific” permit likely would include limits that the Corps would have to meet on the amount of oil discharged.
If the EPA instead issues a general permit, environmentalists would be less sanguine about its prospects, Powers said. General permits are less effective in compelling change because they are issued without specific metrics that must be met, she said.
In 2009, the EPA found a host of toxins in fish on the Columbia River, including polychlorinated biphenyl, a potentially carcinogenic synthetic that was banned from production in the U.S. in 1979.
The eight dams use turbines that have shafts and hubs filled with oil or other lubricants. The oil leaks to the surface, along with oil from drainage sumps, transformers and wickets that control water flow.
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