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Deschutes River Clean Water Case Headed To The Ninth Circuit; Briefs Due Early 2019
Posted on Friday, November 02, 2018 (PST)

A lawsuit in U.S. District Court of Oregon that already has ended twice before has been resurrected and is headed to the Ninth Circuit Court of Appeals.


This is the second time the Ninth Circuit has heard some aspect of the case that was brought by the Deschutes River Alliance against Portland General Electric and the Confederated Tribes of the Warm Springs Indian Reservation of Oregon for alleged clean water offenses at the Pelton Round Butte Complex of Dams on the lower Deschutes River.


The original suit was filed by DRA August 12, 2016, and amended June 23, 2018, to include the Tribes as a defendant. The Tribes are co-owner in the Pelton Round Butte Complex.


PGE had taken an earlier decision by Simon to the Appeals Court on May 30, 2017. The utility had asserted that DRA could not bring a citizen suit against PGE under the federal Clean Water Act. When it was denied, it took the decision to the Ninth Circuit, which denied PGE’s request on August 14, 2017.


After two years in court, U.S. District Court Judge Michael H. Simon dismissed the suit August 3, but DRA filed an August 24 motion to reopen the lawsuit, asking Simon to order more spill at the project’s reregulation dam as a way to increase dissolved oxygen in the river downstream. Simon denied DRA’s petition to reopen the case Oct. 1.


DRA filed with the Ninth Circuit Oct. 18, appealing Simon’s August 3 decision when he dismissed the case.


“Under the District Court's recent decision, the Clean Water Act certification for the Project does not require compliance with Oregon's important water quality standards,” Jonah Sandford, DRA executive director said in an email. “These standards have been developed and implemented to protect aquatic life in the Deschutes and other Oregon rivers.


“In our view, compliance is not only required under the Clean Water Act but is essential for the future of this river and the fish, wildlife, and people who depend on it,” Sandford continued. “We believe that, on review, the Ninth Circuit will interpret the certification's requirements in a manner consistent with the fundamental purposes of the Clean Water Act and will ensure important standards for the Deschutes River are met.”


The alleged clean water 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 original 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.”


According to the Ninth Circuit schedule for the case, a DRA opening brief is due to the court Jan. 25, 2019 and an answering brief from PGE and the Tribes is due Feb. 25, 2019.


Also see:


-- CBB, October 12, 2018, “Federal Judge Denies Request To Reopen Deschutes River Clean Water Case,”


--CBB, August 30, 2018, “Deschutes River Alliance Asks Court To Reopen Dismissed Water Quality Case On Dissolved Oxygen Issue,”


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


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