Protecting water quality and salmon in the Columbia basin: the case for state certification of federal dams.

• Author: Steadman, Jane G.

1. INTRODUCTION II. THE CLEAN WATER ACT: PURPOSE AND BASIC FRAMEWORK A. Effluent Limitations and NPDES Permits B. Water Quality Standards III. DAMS AND THE CLEAN WATER ACT A. The Gorsuch Decision: Exempting Dams from the NPDES Program B. Enforcing Water Quality Standards Against Dams 1. Section 401: State Certification of Private Dams a. S.D. Warren: Of Dams and "Discharges" b. The Effect of the State Certification Requirement i. On the State's Terms ii. The Public's Influence 2. Federal Dams: Polluters In Need of Enforcement a. Section 313: Federal Duty to Comply with Clean Water Act? b. The Endangered Species Act: Roundabout Water Quality Enforcement i. Overview of the Endangered Species Act: Consultation and the Take Prohibition ii. Using the ESA to Enforce Water Quality Standards: An Imperfect Approach IV. INCIDENTAL TAKE STATEMENTS: A PERMIT BY ANY OTHER NAME V. ENSURING COMPLIANCE WITH THE WATER QUALITY STANDARD FOR TEMPERATURE IN THE COLUMBIA BASIN: STATE CERTIFICATION OF FEDERAL DAMS VI. CONCLUSION I. INTRODUCTION

   Many of the once-mighty Columbia Basin wild salmon and steelhead runs face extinction, and some have already met that fate. (1) Among the causes of their imperiled status are habitat degradation and loss, competition with hatchery fish, overharvesting, predation, adverse ocean conditions, and impacts from the hydropower system. (2) Hydroelectric dams have been particularly lethal to salmon because they kill fish passing through turbines; cut off forty-five percent of historic habitat; and increase migration time by creating slack-water and reducing river velocity, which, in turn, leads to greater energy expenditures and increased predation during migration to and from the ocean. (3) One of dams' greatest harms to salmon is water quality impairment, especially the alteration of water temperature regimes throughout the basin. (4)

   Dams and their reservoirs affect thermal regimes in the Columbia and Snake Rivers, in part, by slowing water flow and delaying seasonal cooling. (5) Resulting higher temperatures cause myriad problems for Salmon--which are uniquely adapted to historic temperature patterns--including "elevated risks of disease, fatality, increased predation, and barriers to migration." (6) Because of temperature's effects on salmon, Pacific Northwest states have set water quality standards, or "water quality goals for specific waterbodies," (7) for temperature. (8) Many stream and river segments routinely fail to attain water quality standards, finding themselves on the Clean Water Act (9) section 303(d) list for impaired water bodies. (10) In large part due to the hydropower system, (11) both the lower Columbia and Snake Rivers are water quality-limited for temperature, (12) with summer temperatures frequently exceeding the maximum twenty degrees Celsius allowed. (13) As the climate warms, the water quality problem will only grow, and in the heavily managed Columbia Basin, the effects will be especially harsh for the salmon. (14)

   A growing body of evidence suggests that climate change is already affecting stream temperatures in the basin, and that salmon will fall victim to ever-increasing temperatures if the hydropower system does not undergo a major transformation. (15) When faced with the reality of climate change, one long-time opponent of dam breaching now argues that breaching the four Lower Snake River dams is the only strategy that will allow Snake River salmon to survive, let alone thrive. (16) Others believe that, at the very least, significant changes in dam operations, like considerable flow augmentation, are necessary to curb the rising temperatures. (17) Although the need for such operational changes in order to improve water quality seems quite apparent, persuading the federal government to operate its dams in this manner is another matter entirely.

   Despite dams' unquestioned adverse effects on water quality, they have been subject to relatively little enforcement under the Clean Water Act (CWA). The curious decisions of two circuit courts have effectively removed dams from the ambit of the National Pollutant Discharge Elimination System (NPDES) permit program, the CWA's most powerful water quality enforcement mechanism, even when the United States Environmental Protection Agency (EPA) has since promoted the expansive interpretation of identical jurisdictional terms for its wetlands program. (18) Other circuits whittled away at the primary enforcement option at federal dams--section 313 of the CWA (19)--by gratuitously deferring to agency expertise. (20) Thus, section 401's certification requirement has become the last great bastion for CWA enforcement at dams, (21) although the provision has been applied exclusively to dams licensed by the Federal Energy Regulatory Commission (FERC). (22) This final enforcement mechanism was challenged by S.D. Warren Co., a paper manufacturer, when it claimed it did not need to obtain certification for its FERC license.

   In 2006, the United States Supreme Court unanimously ruled in S.D. Warren Co. v. Maine Board of Environmental Protection, (23) that a FERC license did, in fact, require compliance with state certifications mandating greater minimum stream flows because dam operations cause "discharges," (24) which trigger section 401 of the CWA. (25) The decision implicates more than just FERC-licensed dams, though, since federal dams, historically subject to far less regulation than private dams, operate with the same potential for a discharge. (26) An unresolved question' is whether, in the absence of a FERC license requirement, federal dams are subject to section 401 certification. This Comment argues that they are because section 401 requires an applicant for any "federal license or permit" to obtain state certification that potential discharges will not impair state water quality standards. (27) Since most, if not all, federal dams must obtain an incidental take statement (ITS) under the Endangered Species Act (ESA), (28) the federal agency operating the dam should be subject to the requirements of section 401 because, despite its name, an ITS functions as a permit or license. (29) Consequently, this Comment concludes that federal dam operators without a section 401 certification are in violation of the Clean Water Act, and National Oceanic and Atmospheric Administration (NOAA) Fisheries (formerly National Marine Fisheries Service, or NMFS) has illegally issued ITSs in the absence of the required state certification.

   In the case of the Columbia Basin dams, NOAA's failure to require section 401 certification before issuing ITSs for listed Pacific salmon species navigating the extensive hydropower system seems to clearly violate the Clean Water Act. Salmon advocates have repeatedly litigated controversial, indeed illegal, incidental take statements for the Columbia and Snake River dams. (30) However, no suits have claimed ITSs require section 401 certification such that the dams' operations will comply with state water quality standards. Although much of the Columbia Basin is water-quality limited for temperature, (31) which the federal agencies could help rectify through altered dam operations, (32) federal agencies have shunned (33) and federal courts have been reluctant to impose all the actions necessary to produce water quality protective of salmon to date. (34) Section 401 certification would provide the states, (35) as well as the public, a much greater role in forcing solutions to the protracted salmon problem, since section 401 contains a mandatory public participation provision. (36)

   Using the Columbia Basin dams as a case study, this Comment argues that the CWA requires federal dam operators to acquire section 401 certification before they can obtain incidental take statements under the ESA. Part II provides background on the Clean Water Act's purpose and basic framework. Part III analyzes various approaches to water quality enforcement at dams, focusing particularly on section 401 's potential to bring about compliance with water quality standards. Part IV explores whether an incidental take statement constitutes a federal permit or license and explains why federal agencies must obtain section 401 certification before an incidental take statement can issue. Part V applies the conclusions drawn throughout the Comment to the Columbia Basin hydropower system. The Comment concludes that the Columbia Basin dams--and any federal dam requiring an incidental take statement--operate in violation of the Clean Water Act until they obtain the appropriate section 401 certification.

2. THE CLEAN WATER ACT: PURPOSE AND BASIC FRAMEWORK

   In the 1972 Federal Water Pollution Control Act Amendments, commonly known as the Clean Water Act, Congress's purpose was lofty: "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through a comprehensive water pollution control scheme. (37) To achieve this purpose, Congress set goals of eliminating the discharge of pollutants by 1985, (38) attaining water quality producing fishable and swimmable waters by 1983 (the fishable/swimmahle goal), (39) and prohibiting the discharge of toxic pollutants in toxic amounts. (40) The CWA envisioned achieving these goals by setting and enforcing two types of water quality measures: effluent limitations and water quality standards.

   1. Effluent Limitations and NPDES Permits

      Effluent limitations, which are set by the EPA, are restrictions on quantities, rates and concentrations of pollutants discharged into water by end-of-pipe polluters. (41) Any activity that results in a "discharge of a pollutant" into the navigable waters from a point source satisfies the threshold for an effluent limitation and becomes subject to various provisions of the CWA. (42) Most importantly, the discharger must comply with the National Pollutant Discharge Elimination System (NPDES) permit program established by section 402 of the CWA...