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PGE Seeks Appeal In Ninth Circuit On Deschutes Clean Water/Salmon Reintroduction Case
Posted on Friday, April 14, 2017 (PST)

A federal court decision denying Portland General Electric’s motion to dismiss a water quality suit against the company for the effects of its dam operations on the Deschutes River in Central Oregon may end up in appeals court as PGE seeks a second opinion at the Ninth Circuit Court of Appeals.

 

A PGE filing last week asks U.S. District Court Judge Michael H. Simon to immediately “certify” his March 27 decision denying the utility’s dismissal motion so an appeal can proceed. PGE says such an issue has never before been decided in an appellate court and may need a second pair of eyes. PGE also asked the court to stay proceedings while the appeal works its way through the courts.

 

The Deschutes River Alliance filed its suit August 12, 2016, over what it says are Clean Water Act violations in the Deschutes River downstream of PGE’s complex of dams that form Lake Billy Chinook. At issue are water temperature changes intended to enhance salmon and steelhead reintroduction above Lake Billy Chinook.

 

In November, PGE filed a motion to dismiss the lawsuit, saying that a citizen lawsuit is not permissible.

 

PGE has also said that the Federal Energy Regulatory Commission, the government commission that holds PGE’s license to operate its Pelton Round Butte complex of dams, has jurisdiction over all licensing issues, including CWA violations.

 

Simon decisively disagreed with PGE, saying that “The CWA plainly and unambiguously confers an opportunity among citizens to sue alleged violators when government agencies fail to act.”

 

PGE filed its motion to certify and stay the proceedings with Simon Thursday, April 6.

 

“This court was the first in the country to decide whether Clean Water Act … provides third-party citizens with a right of action to enforce a certification issued by a state pursuant to CWA section 401,” Beth Ginsberg, attorney for PGE, wrote in her memorandum to the court.

 

She went on to say that no appellate court has had the opportunity to expressly decide whether the CWA allows citizens to challenge the terms and any conditions of a CWA certification, such as the certification the utility and its co-licensee, the Confederated Tribes of the Warm Springs Reservation, have with the Federal Energy Regulatory Commission.

 

DRA’s executive director, Jonah Sandford, said the group will file its response to PGE’s motion shortly.

 

In addition, the Tribes, which had not been named in DRA’s suit, filed a motion with the Court to join the suit as Amicus Curiae in “all aspects of this case, including any appeal.”

 

“The FERC license requires the Tribe and PGE to implement a Fish Passage Plan that is intended to establish self-sustaining harvestable anadromous fish runs of Chinook salmon, steelhead, and sockeye salmon above the Pelton Project,” the Tribes’ motion says. “The Tribe has significant sovereign and treaty-reserved rights and interests in those fisheries. The Tribe’s share of the Project’s revenue also provides critical support for diversifying the Tribe’s economy, which is essential to meet the growing tribal membership and to support the self-governance of the Tribe.

 

“The Tribe seeks leave to appear as amicus curiae in this action in order to protect its proprietary, sovereign, and treaty-reserved rights and interests,” the motion concludes.

 

Simon allowed the Tribes to participate in the case this week.

 

DRA’s primary complaint is with the temperature of water releases from PGE dams 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, are 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.

 

DRA says the tower operations have led to over 1,000 violations of water quality requirements for temperature, pH, and dissolved oxygen at the complex of dams since 2010 and that the violations have resulted in ecological changes in the lower Deschutes. The changes, the group says, include “rampant proliferation of nuisance algae, changes in insect hatch timing and abundance, and a decline in insectivorous species like birds and bats.”

 

Still, the merits of the case have yet to be argued in court – the alleged water quality violations in the lower 100 miles of the Deschutes River – but both DRA and a former PGE biologist released information to the public that is setting the stage for the technical arguments that could be heard in court, if the case advances that far.

 

DRA this week (April 10) released its 2016 Lower Deschutes River water quality report (https://deschutesriveralliance.wordpress.com/2017/04/10/announcing-the-dras-2016-lower-deschutes-river-water-quality-report/) that lays out the group’s water quality monitoring results from 2016.

 

“Results of this study found significant problems with water quality, including extensive violations of the Deschutes Basin pH standards,” the report says. “Temperature and dissolved oxygen also failed to meet the water quality requirements explicitly defined in the CWA 401 Certification for project operation.”

 

“I’m not sure if we will be introducing the report into court proceedings as evidence,” said Greg McMillan, DRA’s director of science and conservation and one of the report’s authors. “Our case rests primarily on the annual water quality reports that PGE submits to FERC.”

 

“Those reports show extensive, ongoing violations of the water quality requirements contained in the Clean Water Act 401 Certification for the Project,” Sandford added.

 

Released last week, April 3, from Don Ratliff, retired PGE biologist in Central Oregon, was “An Open Letter to the Deschutes River Alliance Board of Directors, Members and Contributors Concerning the Future of the Deschutes River” (http://www.ifish.net/board/showthread.php?p=13971489#post13971489).

 

Using water temperature data in the lower Deschutes River from before PGE’s dams were in place (before 1953) and comparing it on one hand to after the dams were in place and on the other hand to after the water withdrawal tower was in place (2010), Ratliff shows that the current water temperatures downstream of the dams with the tower operating more closely follows the river’s natural temperature prior to the dams than has the river’s temperature during the interim years (1954 – 2010).

 

Also see:

 

--CBB, April 7, 2017, “Judge Denies PGE Request To Dismiss Deschutes Clean Water Lawsuit Related To Salmon Reintroduction,” http://www.cbbulletin.com/438671.aspx

 

-- CBB, February 10, 2017, “States Weigh In On Deschutes River Clean Water Case Related To Salmon/Steelhead Re-introduction,” http://www.cbbulletin.com/438307.aspx

 

--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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