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States Weigh In On Deschutes River Clean Water Case Related To Salmon/Steelhead Re-introduction
Posted on Friday, February 10, 2017 (PST)

The Oregon and Washington attorneys general January 25 filed a brief in U.S. District Court disagreeing with Portland General Electric’s assertion that the Deschutes River Alliance’s clean water challenges over the Pelton Round Butte Complex of dams should be taken up with the Federal Energy Regulatory Commission, not with the court.

 

DRA filed its suit August 12, 2016, over what it says is more than 1,000 Clean Water Act violations in the Deschutes River downstream of PGE’s complex of dams. In November, PGE filed a motion to dismiss the lawsuit, saying that a citizen lawsuit is not permissible.

 

The DRA complaint is at  http://images.wolfpk.com/deschutesriveralliance/pdf/complaint_FINAL.pdf

 

And just last Friday morning, February 3, PGE and DRA squared off for oral arguments in Judge Michael H. Simon’s court in Portland.

 

PGE attorney Beth Ginsberg argued that environmental groups cannot sue to enforce the conditions of permits issued under the Clean Water Act, according to a synopsis of the oral arguments in Courthouse News Service (http://courthousenews.com/attorneys-debate-right-to-sue-in-clean-water-hearing/).

 

Although the CWA authorizes lawsuits to force companies to apply for clean water permits, she said, it does not allow people, such as DRA, to sue to enforce the permit. DRA should have petitioned FERC, which issued the permit to operate the dams.

 

“Congress said not all subsections of the Clean Water Act are eligible for a citizen suit,” Ginsberg said. “Instead of making the certification process separately enforceable, Congress decided the enforcement mechanism would be enforceable by FERC. And FERC has a petition process that plaintiffs could use.”

 

That could shut down the process that has become a cornerstone of forcing government agencies to obey environmental laws, according to DRA attorney Dan Galpern.

 

“PGE argues that if this court found we don’t have the ability to bring a citizen suit, we’d still have the petition process under FERC,” Galpern said. “But those avenues are likely to be dead ends. As your honor pointed out, FERC retains virtually unbridled discretion to refuse to act, even when presented with clear violations.”

 

“There is no good, viable option for my clients to restore the river and enforce basic provisions of the Clean Water Act without the basic ability to file a citizen suit,” Galpern concluded.

 

DRA’s primary complaint is with the temperature of water releases from the Pelton-Round Butte Complex into the 100 miles of Deschutes River downstream of the dams and the impact on the lower river environment.

 

Those increasing water temperatures in the lower river, DRA says, is due to the utility’s $90 million 273-foot tall selective water withdrawal tower in Lake Billy Chinook. The tower is a surface attractor and helps juveniles find their way downstream to the dam where they are trapped, marked and transported below the dams. It is an integral part of PGE’s efforts to reintroduce salmon and steelhead upstream of the dams.

 

The brief filed by the two states followed a similar argument as that made by Galpern, saying that the states must have the right to enforce water quality standards that they set. The two state attorney generals had combined to file the “amici” brief on behalf of the Oregon Department of Environmental Quality and the Washington Department of Ecology, the two state agencies responsible for enforcing clean water standards in the two states.

 

“Contrary to PGE’s suggestion, Congress did not intend in the federal Clean Water Act for states to go through an empty exercise of imposing conditions on a water quality certification without authority to enforce those conditions,” the brief says. “In effect, PGE is arguing that state certifications serve as nothing more than statements of idle aspiration.”

 

For water quality obligations to be “meaningful, they must be enforceable by the state that imposed them,” the brief says, not exclusively by a federal licensing agency. In fact, the brief continues, the federal licensing agency “will frequently lack the knowledge or motivation to enforce those certification conditions.”

 

The amici asked the court to reject PGE’s “strained statutory interpretation” and concludes that it would in effect eliminate “a state’s authority to enforce the certification obligations that the Clean Water Act allows them to impose to protect water quality within its borders.”

 

In a January 30 counter brief PGE says that Congress intended that the terms of the CWA section 401 certification would be fully incorporated into the license issued by FERC and would be enforced through FERC’s licensing process.

 

“DEQ understood this and fully participated in the re-licensing of the Project by playing a central role in the negotiation of the new license and by issuing a section 401 certification that conditioned the license on water quality grounds that ensure compliance with state water quality standards and result in protection of fish and aquatic biota,” the counter brief says. “Indeed, DEQ included 20 separate conditions into its section 401 certification that regulate Project operations to ensure compliance with state water quality standards.”

 

In addition, according to PGE, DEQ is member of the Fish Committee established by the FERC license. The committee is charged with on-going administration of the adaptive management provisions in the license dealing with water quality as it affects fish and aquatic biota.

 

“Through the FERC license, then, DEQ has an on-going role in implementing and adaptively managing the water quality provisions of the license that it was instrumental in developing,” PGE says.

 

Judge Simon did not say when he would make his decision.

 

Also see:

 

--CBB, January 27, 2017, “Upper Deschutes Salmon Reintroduction: Genetic Testing Confirms Returning Sockeye From Mid-Deschutes,” http://www.cbbulletin.com/438253.aspx

 

--CBB, November 4,, 2016, “Portland General Pushing For Dismissal Of Deschutes Water Quality Case; Outlines FERC Process,” http://www.cbbulletin.com/437916.aspx

 

--CBB, September 23, 2016, “ODFW Survey (Snorkeling, Electrofishing) Shows Smallmouth Bass In Lower Deschutes For First Time,” http://www.cbbulletin.com/437604.aspx

 

--CBB, September 16, 2016, “Portland General Lays Out Several Defenses It Might Use In Deschutes River/Clean Water Act Lawsuit,” http://www.cbbulletin.com/437529.aspx

 

--CBB, August 26, 2016, “Deschutes River Alliance Sues PGE Over Water Quality Issues In Deschutes River; Sockeye Reaching Dam,” http://www.cbbulletin.com/437374.aspx

 

-- CBB, April 17, 2015, “Upper Deschutes Basin Reintroduction: Steelhead Seen Spawning Upstream Of Lake Billy Chinook,” http://www.cbbulletin.com/433729.aspx

 

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