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.
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
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
November, PGE filed a motion to dismiss the lawsuit, saying that a citizen
lawsuit is not permissible.
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.
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.”
filed its motion to certify and stay the proceedings with Simon Thursday, April
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.
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.
executive director, Jonah Sandford, said the group will file its response to
PGE’s motion shortly.
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.”
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.
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
allowed the Tribes to participate in the case this week.
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.
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.
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.”
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.
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.
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
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.”
reports show extensive, ongoing violations of the water quality requirements
contained in the Clean Water Act 401 Certification for the Project,” Sandford
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).
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).
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
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