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Deschutes River Alliance Amends Complaint In Clean Water Case As PGE Argues Dismissal
Posted on Friday, June 29, 2018 (PST)

At the invitation of U.S. District Court in Oregon Judge Michael H. Simon, the Deschutes River Alliance filed an amended complaint last week in a lawsuit that alleges Portland General Electric is violating Clean Water Act rules due to their operations of the Pelton Round Butte Complex of dams on the lower Deschutes River.

 

The difference in this June 23, 2018 amended complaint is that in the nearly two-year old case (first filed in District Court August 12, 2016) DRA has now included the Confederated Tribes of the Warm Springs Reservation of Oregon as a defendant.

 

In the same week, DRA, along with PGE and the Tribes, filed cross motions for summary judgement, which continues arguments over whether the case should be heard or dismissed in its entirety.

 

“Despite submitting hundreds of pages of briefing in this case, Plaintiff Deschutes River Alliance (“DRA”) does not refute, and therefore concedes, that the selective water withdrawal (“SWW”) facility cannot at all times be operated to simultaneously satisfy all four water quality standards at issue in this case—temperature, dissolved oxygen, pH, and fish passage,” PGE’s June 25 reply says.

 

It continues, saying “Plaintiff DRA seeks to fundamentally change how the Project operates by emphasizing the Certification’s individual water quality objectives for temperature, dissolved oxygen, and pH, and by ignoring or dismissing the Certification’s crucial fish passage and adaptive management requirements.”

 

PGE says in its filing that the water quality standards DRA wants to hold the utility to are outdated and that the Oregon Department of Environmental Quality “has authorized the Project to implement revised temperature and dissolved oxygen objectives that are consistent with the currently effective water quality standards for temperature and dissolved oxygen in the Deschutes River” and that a citizen suit can only ask to enforce, not rewrite, certification conditions.

 

DRA, in a June 22 reply brief filed several days prior to PGE’s brief, said it is asking the court to order PGE to “operate the Project in compliance with the specific water quality conditions included in its CWA § 401 certification. This request is sensible given PGE’s status as owner and operator of the Project.”

 

Simon has agreed to hear oral arguments on PGE’s motion to dismiss at the same time he will hear arguments on the pending motions for summary judgement, according to a June 19 court order. Those oral arguments are scheduled for July 17 in Portland.

 

PGE has twice before moved for the suit to be dismissed, but Simon’s June 11 decision ruled against the latest dismissal motion. PGE had said in a March 23 motion to dismiss that the Tribes, co-owners of the Pelton Round Butte Complex, are necessary to the case, but were not included and, in fact, could not be included due to the Tribes’ sovereign immunity. Instead of dismissing the case, Simon ordered the Tribes to join and invited DRA to file an amended complaint that includes them.

 

PGE’s first motion to dismiss, based upon its assertion that DRA could not bring a citizen suit against PGE under the federal Clean Water Act, was denied by Simon and upheld by the Ninth Circuit Court of Appeals.

 

For details, see CBB, June 15, 2018, “Judge Rejects Dismissal Of Deschutes River Clean Water Case, Says Tribes Should Also Be Defendant,” http://www.cbbulletin.com/440944.aspx.

 

DRA’s lawsuit alleges that PGE’s operations of the dams have resulted in over 1,000 violations of its CWA 401 Certification.

 

PGE says that under a relicensing agreement for the Complex it must balance both water quality and the reintroduction of anadromous fish upstream of the dams. To accomplish its fish passage goals, it built a selective water withdrawal facility at the Round Butte Dam. The SWW has been in operation since 2009 and, as a result, Simon wrote in his June 11, 2018 opinion, “anadromous fish are now passing both upstream and downstream through the Pelton Project.”

 

However, DRA says the SWW, which blends surface and bottom water, is now impacting water quality downstream of the complex of dams, 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, June 8, 2018, “Deschutes River Alliance Urges District Court To Maintain Jurisdiction In Clean Water Case,” http://www.cbbulletin.com/440885.aspx

 

--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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