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Deschutes River Alliance Urges District Court To Maintain Jurisdiction In Clean Water Case
Posted on Friday, June 08, 2018 (PST)

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 it alleges.

 

“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 expertise.”

 

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 from Congress.

 

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 this case.”

 

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 states.”

 

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 adaptive management.”

 

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 401 Certification.

 

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.

 

Also see:

 

--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 Court,” http://www.cbbulletin.com/439469.aspx

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