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Deschutes River Alliance Asks Court To Reopen Dismissed Water Quality Case On Dissolved Oxygen Issue
Posted on Thursday, August 30, 2018 (PST)

The plaintiff in a two-year old case that was dismissed in U.S. District Court of Oregon in early August has asked the judge to reopen the case to reconsider one aspect of his decision.


The Deschutes River Alliance had alleged that the operations at Portland General Electric’s Pelton Round Butte Complex of dams are responsible for more than 1,000 water quality violations in Oregon’s lower Deschutes River. That case was dismissed August 3 by U.S. District Court in Portland Judge Michael H. Simon.


The suit was filed by DRA August 12, 2016, against PGE and amended June 23, 2018, to include the Confederated Tribes of the Warm Springs Reservation of Oregon as a defendant.


The alleged violations included temperature, pH and dissolved oxygen. While DRA said the project’s discharges in the lower Deschutes River exceed water quality standards outlined in PGE’s management agreement, Simon dismissed the suit saying that water quality under the management agreement is adaptively managed and so is not violating its Sec. 401 water quality certificate under the federal Clean Water Act.


In its Aug. 24 motion to reopen the case, DRA asked Simon to reconsider one aspect of his Aug. 3 opinion and order.


“We've asked Judge Simon to reconsider his decision as it relates to one criteria: dissolved oxygen,” said Jonah Sandford, executive director of DRA. “The Project operators have a specific tool for improving dissolved oxygen concentrations—spill at the Reregulating Dam—that can be undertaken without negative impacts to other water quality criteria and fish passage operations.


“The Project’s §401 Certification states that the Project operators will undertake spill as necessary to maintain sufficient dissolved oxygen concentrations, and we believe it is essential that they do so to protect the lower river’s aquatic life.”


PGE has yet to file a countermotion.


“We’re reviewing their motion and will file a response with the court,” said PGE spokesperson Steve Corson. “We believe the court reached an appropriate decision in this case, and it should stand without alteration.”


According to DRA’s motion to reopen the case, the court made two errors in its judgement on dissolved oxygen.


“First, the Court incorrectly assumed that the mandated measure for increasing dissolved oxygen levels of Project discharge—spill at the Reregulating Dam—could interfere with attainment of other Project goals and requirements,” the motion says. “However, because Reregulating Dam operations, including spill, are entirely separate from and unrelated to the flow regime controlled by the Selective Water Withdrawal (SWW) tower, Defendants must not be excused from performing the mandated spill when necessary to comply with dissolved oxygen criteria.”


Secondly, Oregon Department of Environmental Quality’s “dissolved oxygen standard for a specific river depends on whether or not salmonid spawning and incubation is occurring,” Sandford said. “It is well understood that fish eggs need higher levels of oxygen than the fish themselves. As a result, Oregon’s water quality standards mandate higher dissolved oxygen levels during periods of spawning and incubation.”


And, according to Sandford, fish in the lower Deschutes River spawn at times far beyond June 15 when spill ends at the project’s re-regulating dam.


“In the lower Deschutes River, several studies have demonstrated that resident trout spawning and incubation occurs at least until early September, meaning a more rigorous 9.0 mg/L standard should apply at least until that time to ensure trout are protected during this critical period,” Sandford said.


He said that ODEQ and the project operators – PGE and the Tribes – have ignored these studies and, instead, have identified June 15 as the end of the spawning and incubation period.


“This has allowed the Project operators to avoid spilling to meet the 9.0 mg/L standard after that date, and has likely caused harm to the river’s resident trout population,” Sandford said.


Sandford added that spill at the re-regulating dam does not impact other water quality criteria, such as temperature and pH goals. Those criteria “are managed through modifications of blend at the SWW tower, located ten miles upstream.”


DRA’s lawsuit alleges that PGE’s operations of the dams have resulted in over 1,000 violations of its CWA 401 Certification, but 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 the SWW at the Round Butte Dam, which has been in operation since 2009. Simon wrote in his June 11, 2018 opinion, “anadromous fish are now passing both upstream and downstream through the Pelton Project.”


On the other hand, DRA, which has previously said it doesn’t oppose the reintroduction of anadromous fish upstream of the dams, says the SWW, which blends surface and bottom water, impacts 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.


Attorneys for PGE and the Tribes, along with the ODEQ, which approved the current 401 Water Quality Certification for the dam, argued earlier in court that water quality violations are corrected by a Fish Committee as they occur through an adaptive management fish passage plan put in place as a relicensing settlement agreement in 2005. The plan also must ensure that salmon and steelhead can be reintroduced upstream of the dams.


Also see:


--CBB, August 10, 2018, “Judge Dismisses Deschutes River Case, Says PGE Not Violating Clean Water Certificate,”


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