Clean Water Act citizen suits, like the suit
brought by the Deschutes River Alliance against Portland General Electric for
alleged CWA violations at the Pelton Round Butte Complex of dams, was intended
by Congress to be argued in court, DRA says in its May 30 brief filed in U.S.
District Court of Oregon.
In its own May 16 brief, PGE, at the
invitation of Judge Michael H. Simon, argued that DRA should have sought relief
in other venues before approaching the court for relief on the CWA violations
“The prudential doctrine of primary
jurisdiction enables a court to dismiss a case to allow agencies with unique
technical expertise and jurisdiction over the issues at bar to resolve those
issues,” PGE had said in its brief.
In the latest round of arguments before
Simon’s court, DRA disagreed with this “primary jurisdiction” approach.
“In drafting the CWA, Congress clearly and
expressly authorized citizens to enforce § 401 certifications in federal
court,” DRA’s brief says. “In so doing, Congress entrusted the courts to rule
on questions like those presented in this matter and recognized the citizen
suit as one of the principle means of ensuring compliance with important water
quality standards and limitations.”
Among the other venues, PGE had said DRA could
have approached the Federal Energy Regulatory Commission. That was an argument
the utility had previously used in its first dismissal motion over one year
ago, but at that time it also alleged that DRA could not bring a citizen’s suit
against PGE under the Clean Water Act, an argument that has been dismissed by
both Simon and the Ninth Circuit Court of Appeals.
FERC holds PGE’s license for the project and
included in that license is the Oregon Department of Environmental Quality’s
Clean Water Act 401 Certification, but DRA says that FERC has “no water quality
PGE also filed a motion to dismiss the case
March 23 on the grounds that its co-owner, the Confederated Tribes of the Warm
Springs Reservation, was not joined to the suit. Two days prior on March 21,
the Tribe, as Amicus Curiae, filed its motion to dismiss.
Both PGE and the Tribe had argued in their
motions that the Tribe is a “necessary and indispensable party which, as a
result of its sovereign immunity, cannot be joined to this suit” and so DRA’s
case should be dismissed. They also argued that, with sovereign immunity, the
Tribe cannot be compelled to join the case without a valid waiver or abrogation
A second venue for DRA, according to PGE, is
to participate on the project’s Fish Committee that PGE says oversees the
implementation of the Fish Passage Plan. That is an adaptive management plan
that guides PGE and the Tribe’s program to reintroduce salmon and steelhead
upstream of the dams.
The Fish Committee is made up of PGE and the
Tribe (in their capacities as licensees), NOAA Fisheries, the U.S. Fish and
Wildlife Service, the U.S. Forest Service, the Bureau of Indian Affairs, the
Bureau of Land Management, the Tribes’s Branch of Natural Resources, the Tribe’s
Water Control Board, Oregon Department of Fish and Wildlife, Oregon Department
of Environmental Quality, and representatives of the NGO community, including
Trout Unlimited, American Rivers, Oregon Trout, and the Native Fish Society.
DRA says that the Fish Committee is “an
advisory body with no judicial procedures or other tools to determine the law,
and no power to enforce the CWA.”
A third venue could be to participate in a
future public process by DEQ that could modify the project’s water quality certification.
However, DRA says DEQ’s future plan to modify its certification is based on
“uncertain statements of intent” by the state agency.
“These arguments are without merit, and
conflict with extensive case law grounded in the underlying statute,” DRA says
in its latest brief. “As courts across the country have consistently held, the
primary jurisdiction doctrine is simply not applicable to citizen suits under
the CWA and other environmental statutes.
“This is sensible, given Congress’ clear
intent that citizens have access to the federal courts in these situations, and
its delegation of jurisdiction to those courts to resolve legal questions such
as those presented here,” the brief continues. “Further, even if the Court did
wish to relinquish its jurisdiction, the Fish Committee and FERC are not
entities to whom Congress has committed the important questions presented in
In its conclusion, DRA says that PGE is asking
the Court to compel DRA to give up its right to prosecute a CWA citizen suit in
order to halt PGE’s CWA violations, and “instead to put its claims in the hands
of entities without the expertise or procedural protections to ensure a proper
and appropriate resolution. Such a ruling would be contrary to Congress’ clear
intent as provided in the CWA. For the foregoing reasons, DRA respectfully
requests that the Court deny PGE’s motion to dismiss.”
To a limited extent and, perhaps adding an
additional wrinkle, Oregon DEQ filed May 30 a brief to clarify its position
regarding the appropriateness of DRA directly approaching FERC for relief.
“As DEQ has emphasized in its prior amicus
briefing, FERC is neither the only nor the most appropriate forum for
determination as to compliance with state water quality conditions,” DEQ says.
“Indeed, the courts have found to the contrary, holding that the interpretation
of state water quality standards is a matter for state courts to resolve. The
clear text of the CWA as supported by its legislative history thus places the
primary responsibility for compliance with state water-quality standards on
DEQ went on to say that it expects to modify
the project’s CWA 401 certification “in the near future” to account for updated
water quality standards and for all that has been learned to date through
That update, DEQ says, will be in conjunction
with other regulatory actions taken by the Confederated Tribes of the Warm
Springs Reservation, partners in the project with PGE.
“Defendant (PGE) indeed recognizes in its
brief that these will be state and tribal actions, rather than federal ones.
This recognition is inconsistent with the suggestion in defendant’s (earlier)
brief suggesting that only FERC can modify the 401 certification. And, in any
event, any such suggestion would be wrong: the CWA authorizes states to
preserve and protect the water quality of State waters, not FERC.”
DRA originally filed the lawsuit in District
Court August 12, 2016, alleging that PGE’s operations of the Pelton Round Butte
Complex of Dams have resulted in over 1,000 violations of its Clean Water Act
Integral to the reintroduction of salmon and
steelhead upstream of the dams is the Selective Water Withdrawal Tower, a
surface attractor that helps juveniles find their way downstream to the dam
where they are trapped, marked and transported to the lower river.
However, DRA says the SWW, which blends
surface and bottom water, is also impacting water quality downstream of the
complex of dams that form the lake, saying that water quality has declined in
the lower Deschutes River since the utility built the $90 million 273-foot tall
SWW in Lake Billy Chinook.
--CBB, May 18, 2018, “PGE Files Additional
Points In Urging Judge To Dismiss Deschutes Water Quality Case,” http://www.cbbulletin.com/440759.aspx
-- CBB, May 11, 2018, “Judge Simon Hears
Arguments On Dismissal Of Deschutes River Clean Water Case,” http://www.cbbulletin.com/440700.aspx
--CBB, April 23, 2018, “Deschutes River
Alliance Counters Motions To Dismiss Clean Water Case,” http://www.cbbulletin.com/440511.aspx
--CBB, April 6, 2018, “PGE, Warm Springs Tribe
Move To Dismiss Deschutes River Clean Water Case,” http://www.cbbulletin.com/440474.aspx
--CBB, March 16, 2018, “Briefing Arguments
Begin In District Court On Deschutes River Clean Water Case,” http://www.cbbulletin.com/440362.aspx
--CBB, August 25, 2017, “Ninth Circuit
Declines PGE Request On Deschutes River Case, Lawsuit Continues In Lower