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
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.
--CBB, August 10, 2018, “Judge Dismisses
Deschutes River Case, Says PGE Not Violating Clean Water Certificate,” http://www.cbbulletin.com/441258.aspx