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.
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.
DRA complaint is at http://images.wolfpk.com/deschutesriveralliance/pdf/complaint_FINAL.pdf
just last Friday morning, February 3, PGE and DRA squared off for oral
arguments in Judge Michael H. Simon’s court in Portland.
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/).
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
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.”
could shut down the process that has become a cornerstone of forcing government
agencies to obey environmental laws, according to DRA attorney Dan Galpern.
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.”
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.
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.
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.
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.
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.”
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
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.”
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.
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.”
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.
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.
Simon did not say when he would make his decision.
January 27, 2017, “Upper Deschutes Salmon Reintroduction: Genetic Testing
Confirms Returning Sockeye From Mid-Deschutes,” http://www.cbbulletin.com/438253.aspx
November 4,, 2016, “Portland General Pushing For Dismissal Of Deschutes Water
Quality Case; Outlines FERC Process,” http://www.cbbulletin.com/437916.aspx
September 23, 2016, “ODFW Survey (Snorkeling, Electrofishing) Shows Smallmouth
Bass In Lower Deschutes For First Time,” http://www.cbbulletin.com/437604.aspx
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
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