Background
Free Flow Project 101 LLC proposed the Goldendale Energy Storage Project, a closed-loop pumped-storage hydropower facility near the Columbia River. The project would use upper and lower off-stream reservoirs connected by underground tunnels, with the lower reservoir located at a former aluminum-smelter site contaminated by past operations. Because the project required a federal hydropower license, it also required a state water-quality certification under § 401 of the federal Clean Water Act.
The Washington Department of Ecology issued the § 401 certification in May 2023. Columbia Riverkeeper and the Confederated Tribes and Bands of the Yakama Nation challenged it before the Pollution Control Hearings Board, arguing, among other things, that project leakage could reach groundwater connected to the Columbia River and that the certification lacked adequate safeguards. The PCHB affirmed the certification, and the challengers sought judicial review.
The Court’s Holding
The Court of Appeals upheld the PCHB’s findings that the project was designed to avoid significant leakage and that the record did not establish a discharge requiring analysis under the “functional equivalent of a direct discharge” test from County of Maui v. Hawaii Wildlife Fund. Substantial evidence, including expert testimony about reservoir liners, tunnel construction, and leak-prevention measures, supported the PCHB’s conclusions. The court also rejected the argument that the certification’s general water-quality condition was invalid under City and County of San Francisco v. EPA, explaining that the cited decision concerned § 402 discharge permits and did not establish that such a condition was inadequate under § 401.
The court nevertheless held that substantial evidence did not support the PCHB’s finding that leakage from the project’s tunnels would be monitored and reported. Although testimony indicated that unexpected water loss could be detected, neither the certification nor the water-quality monitoring plan expressly required monitoring and reporting sufficient to identify tunnel leakage. The court therefore set aside the § 401 certification on that limited issue and remanded for Ecology and the PCHB to impose tunnel-leakage monitoring and reporting requirements; it otherwise affirmed the certification.
The court declined to consider the challengers’ argument that Ecology improperly relied on information developed after publication of the environmental impact statement because that issue had not been raised below.
Key Takeaways
- Substantial evidence supported the agency finding that the closed-loop project was designed to prevent significant leakage from its reservoirs and tunnels.
- Because the record did not establish leakage into groundwater, the PCHB was not required to decide whether such leakage would be the functional equivalent of a direct discharge into the Columbia River.
- A § 401 certification must expressly require necessary monitoring and reporting; testimony that leakage could be detected did not substitute for enforceable tunnel-monitoring conditions.
Why It Matters
The decision underscores that technical evidence supporting a project’s leak-prevention design may justify agency findings that a significant discharge is unlikely. Reviewing courts will not reweigh competing expert testimony when substantial evidence supports the agency’s findings.
But design assurances alone do not satisfy the Clean Water Act’s monitoring requirement. Where an agency relies on monitoring and adaptive management to address uncertainty, the certification must contain enforceable provisions specifying how relevant leakage will be detected and reported.