DRA Brings Clean Water Act Lawsuit to the Ninth Circuit

Photo 3

Photo by Brian O’Keefe

The DRA’s important Clean Water Act lawsuit against Portland General Electric is moving to the Federal Ninth Circuit Court of Appeals. This afternoon, DRA notified Oregon’s Federal District Court that we will be appealing that Court’s recent decision in the case.

DRA brought this lawsuit in the summer of 2016. We are seeking to enforce requirements—for temperature, pH, and dissolved oxygen—found in the Clean Water Act certification for the Pelton Round Butte Hydroelectric Project. After several notable victories in the case—affirming  the authority of citizen groups to bring lawsuits like this one—we suffered our first setback in early August. At that time, the Court ruled against DRA for the first time, finding that PGE was not in fact violating its water quality certification. This ruling came despite an undisputed record demonstrating hundreds of instances where Project discharges exceeded the certification’s numeric water quality standards.

We believe it is essential that this fight continue, and are eager to present our case to the Ninth Circuit. Under the Court’s recent decision, PGE is not required to meet numeric water quality standards at Pelton Round Butte, or even to take the certification’s specified actions to come into compliance with those standards. In short, under the Court’s interpretation, the certification does not ensure compliance with Oregon’s water quality standards.

We believe this interpretation is contrary to the mandates of the Clean Water Act, and of the Pelton Round Butte water quality certification itself. The failure of the Project to meet these critical water quality standards has coincided with severe ecological changes in the lower Deschutes River. These standards were developed for the express purpose of protecting aquatic life, and we will continue to fight to make sure these standards are enforced.

Today marks the next step in our journey to protect and restore the lower Deschutes River. We believe this action is essential for the future of the river we love. Further, the Clean Water Act must remain a powerful, enforceable tool to protect this country’s waters for future generations.

As always, this fight would not be possible without your support. Thank you for all you’ve helped us accomplish, and for joining us as we move forward with our efforts.

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Photo by Brian O’Keefe


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Another Year of Poor Fish Returns to Pelton Round Butte: How Long Will We Let This Continue?

Option 1

The Selective Water Withdrawal tower above Round Butte Dam. Photo by Greg McMillan.

The Selective Water Withdrawal tower above Round Butte Dam was designed with an ambitious goal in mind: to return self-sustaining, harvestable numbers of salmon and steelhead to the upper Deschutes Basin. Now, more than eleven years into reintroduction efforts, it’s time to take a close look at the program. In particular: just how many adult fish is the current program actually returning each year? These numbers can be difficult to glean from PGE’s various PR materials, so we’ve gathered the relevant data and present it below. Unfortunately, the numbers tell a clear story: current reintroduction efforts are simply failing to produce meaningful numbers of returning adult fish.

Background

Portland General Electric began operating the SWW tower in late 2009. (The first juvenile salmon and steelhead had been planted in upper basin tributaries in 2007). The tower is designed to create surface currents in the forebay of Round Butte Dam (the uppermost of the three dams, and the dam which forms Lake Billy Chinook). In theory, these surface currents would help guide out-migrating juvenile fish through the reservoir to a collection facility at the tower. From there, the fish are trucked below the Project and released into the lower Deschutes River.

On this blog, we have frequently highlighted the negative ecological changes in the lower Deschutes River since SWW tower operations commenced. The tower was constructed to draw Lake Billy Chinook surface water—which is primarily composed of Crooked River water—through Round Butte Dam, to ultimately be discharged into the lower Deschutes. Since the tower began operations, river users have observed and documented massive proliferations of nuisance algae, impacts to aquatic insect populations and hatch timing, increased prevalence of fish diseases, and a marked decline in birds and bats. The changes in river conditions are causing real damage to the Maupin economy, and to other people and businesses throughout the region who depend on a healthy Deschutes River for their livelihoods.

How Many Fish is the Reintroduction Program Actually Producing?

Now, nearly nine years after the tower began operating, it is fair to ask what the people of Oregon are receiving in exchange for these negative impacts to the lower river. Specifically, how successful has the fish reintroduction program been? The often-stated goal for the program has been to re-establish self-sustaining, harvestable numbers of sockeye, steelhead, and spring Chinook above the Project. So how many returning adult fish is the program actually producing?

These numbers aren’t easy to find in PGE’s regular promotional materials. Below, we have gathered adult return data from PGE’s annual reports to the Federal Energy Regulatory Commission and from the PGE website. The numbers are not encouraging.

Spring Chinook 

In reintroduction planning documents, ODFW identified a “vision of success” of 1,000 returning adult spring Chinook each year. This number is based on assumptions about the ability of available habitat to to produce juvenile spring Chinook. But this year, only 5 (five) spring Chinook that originated above the Project as part of the reintroduction effort returned to the Pelton Trap. This year’s dismal return is down from only 20 returning fish in 2017, and reflects an ongoing downward trend.

Chinook

Source: Portland General Electric and Confederated Tribes of the Warm Springs Reservation of Oregon, 2012-2017 Fish Passage Annual Reports; and Portland General Electric, Deschutes Daily Fish Counts, available at https://www.portlandgeneral.com/corporate-responsibility/environmental-stewardship/water-quality-habitat-protection/fish-counts-fish-runs/deschutes-daily-fish-counts


Steelhead

The numbers of steelhead produced by the reintroduction program are similarly grim. ODFW’s “vision for success” for the program was 955 returning adult steelhead each year. The 2017-18 run year saw only 25 (twenty-five) Project-origin steelhead return to the Pelton Trap. Further, the number of returning steelhead adults has declined in each run year since 2012-13.

Steelhead

Source: Portland General Electric and Confederated Tribes of the Warm Springs Reservation of Oregon, 2012-2017 Fish Passage Annual Reports; and Portland General Electric, Deschutes Daily Fish Counts, available at https://www.portlandgeneral.com/corporate-responsibility/environmental-stewardship/water-quality-habitat-protection/fish-counts-fish-runs/deschutes-daily-fish-counts


Sockeye

Finally, only 39 Project-origin sockeye have returned to the Pelton Trap this year. These low sockeye numbers are similar to previous years, with the exception of 2016, when 529 sockeye thought to be of Project origin arrived at the trap. DRA has not seen a numeric target for adult sockeye return goals, but the numbers to this point are considerably lower than what is needed for successful reintroduction.

Sockeye

Source: Portland General Electric and Confederated Tribes of the Warm Springs Reservation of Oregon, 2012-2017 Fish Passage Annual Reports; and Portland General Electric, Deschutes Daily Fish Counts, available at https://www.portlandgeneral.com/corporate-responsibility/environmental-stewardship/water-quality-habitat-protection/fish-counts-fish-runs/deschutes-daily-fish-counts


It is Time to Re-Evaluate the Reintroduction Program

In sum, Project-origin steelhead and spring Chinook returns are lower than any point since the reintroduction program started, and demonstrate a continued downward trend. Similarly, 2018 sockeye return numbers are among the lowest on record. And for all three species, the numbers are orders of magnitude below ODFW’s reintroduction plan goals.

As we have regularly stated, DRA strongly supports the goal of reintroducing salmon and steelhead to the upper Deschutes Basin. But any reintroduction efforts must demonstrate, at each step along the way, a reasonable chance for success—something that cannot be said of current operations. And any reintroduction effort must not harm the water quality and ecology of the Deschutes River below the dams.

In short, it is time to re-evaluate the merits of the current fish reintroduction program at Pelton Round Butte. In exchange for ongoing harm to the ecology of the lower Deschutes River, the people of Oregon are receiving just a handful of the promised returning adult fish each year.

Despite attempts by the dam operators and agencies to improve return success, meaningful improvements have not been forthcoming. Therefore, we believe it is time for a comprehensive external review of current Program failures, using outside, unbiased expertise. The Pelton Round Butte “Fish Passage Plan,” which is incorporated into the Project’s federal license, contemplates that fish passage using the SWW tower may not ultimately be successful, and that the operators may be required to turn to “non-passage” mitigation efforts for anadromous fish. If an outside assessment of the current program cannot identify operational changes that will lead to a reasonable chance of greater success in a defined time period, then it is time to explore other potential mitigation efforts. The millions of dollars being spent on the current fish reintroduction operations should be quickly diverted to measures that have been proven to produce more adult fish. In particular, habitat restoration in tributaries such as Trout Creek could greatly enhance prospects for wild fish recovery in the basin.

Option 2

Photo by Brian O’Keefe


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The DRA’s First Adopt-a-Highway Clean-Up Event Was a Success!

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A huge thank you to everyone who came out for the DRA’s first highway clean-up event! We enjoyed a beautiful morning in good company, doing good work along Highway 197 in Maupin. We greatly appreciate all who joined in!

Special thanks to ODOT and the Adopt-a-Highway program for the opportunity to sponsor Mile 46. And thank you to the Oasis Resort and Mike McLucas for their years of dedication to this important stretch of highway along the Deschutes River.

Stay tuned for future clean-up events in the coming months!

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Action Alert – Tell BLM to Re-think Plan to Remove Lower Deschutes River Toilets

Hafele smoke photo

Photo by Rick Hafele

Citing concerns about potential water quality degradation, The Bureau of Land Management’s Prineville District is proposing removal of ten existing toilets on the lower Deschutes River. In an August 13 Letter, BLM identified the following facilities as proposed for removal:

  • Airstrip (RM 17.7)
  • Sixteen Canyon (RM 21.3)
  • Dike (RM 21.9
  • Lower Blue Hole (RM 48.3)
  • Harpham Flat (RM 55.8)
  • Devil’s Canyon (RM 57.4)
  • Upper Dant (RM 65.3)
  • Redside (RM 86.6)
  • Basalt (RM 90.2)
  • Stangland (RM 92.1)
  • Luelling (RM 93.4)
  • Lower Mecca (RM 96.0)

While the DRA agrees that the problem of leaking or aging toilet facilities should be addressed, we believe that the proposed removal of these facilities, without replacement, is a step in the wrong direction. Some individuals on the DRA Board of Directors, and many of our supporters, have been using the river for over 40 years—a period that saw a change from a few rudimentary outhouses on the river to the current situation of multiple toilets, strategically located to accommodate the river’s heavy traffic. We have witnessed a profound improvement in the river during that time as a result of these toilets. This includes less direct, visible evidence of human waste and toilet paper on the river’s banks, and less resulting harm to water quality and aquatic life. BLM’s proposal to remove 10 of the lower river’s existing 75 outhouses will almost certainly reverse some of these improvements, to the detriment of river users and the river’s aquatic life. We believe that any facilities credibly deemed to be a risk to water quality should be quickly replaced and improved, rather than removed.

A principal justification offered for removal of several of these toilets is that the areas are primarily accessed by boat, and users would already be carrying portable toilets. We believe this statement is inaccurate, as most of these sites are also accessed by river users who are not required to carry their own toilets, including hikers, bikers, and day floaters. Further, removing toilets at some lower river sites would undoubtedly lead to overcrowding at other nearby sites with toilet facilities. And the BLM proposal does not address the increased amount of waste that will be transported downstream—and will necessitate disposal—from overnight boaters’ portable toilets.

BLM is accepting comments on this proposal until Wednesday, September 5. DRA has submitted comments, which can be read here. Please take the time to submit your own comments to BLM, to request that they re-think this proposal in light of the information above. These toilet facilities are essential to maintaining the ecology and recreation experience on this incredible river.

More information about this proposal can be found here.

Comments may be submitted to Jeff Kitchens, Field Manager, with “Lower Deschutes Toilets” on the envelope or in the subject line. Comments can be emailed to blm_or_pr_mail@blm.gov, or faxed to 541-416-6798. They can also be mailed to:

Bureau of Land Management
Prineville District Office
3050 NE 3rd Street
Prineville, OR 97754

Deschutes River Alliance: Cooler, cleaner H2O for the lower Deschutes River. 

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A Setback, but Not the End of the Fight

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Round Butte Dam and the Selective Water Withdrawal Tower. Photo by Greg McMillan.

On Friday, August 3, the Deschutes River Alliance was notified by the Federal District Court that Judge Michael Simon had ruled against the DRA in our Clean Water Act citizen suit against Portland General Electric. In recent months DRA and PGE had each filed motions for “summary judgment,” asking the Court to determine whether PGE was violating the Clean Water Act at the Pelton Round Butte Hydroelectric Project. The Court granted PGE’s motion—a decision which, if it were to stand, would result in dismissal of the case.

We are in the process of analyzing the Court’s ruling and assessing our next steps as we work to ensure that critical water quality standards are protected on the Deschutes River.

While we are disappointed in this decision, it is not the end of the fight. We will continue pushing forward to protect and restore this incredible river, using every tool available. We won’t let up until cooler, cleaner water returns to the lower Deschutes.

Be on the lookout soon for the next steps in this important fight.

Cooler, cleaner H2O for the Deschutes!

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Action Alert – DRA Calls for Afternoon Fishing Closure on the Lower Deschutes River

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Photo by Brian O’Keefe

For the last two days, water temperatures at the Deschutes River’s Moody gauge reached 71° Fahrenheit, and have exceeded 70° Fahrenheit on many recent days. With predicted temperatures in north Central Oregon near or above 100° through early next week, it’s likely that Deschutes temperatures will reach 72° and higher in the coming days.

These temperatures are extremely dangerous for Deschutes River fish, including summer steelhead–which are listed as “threatened” under the Endangered Species Act. Water temperatures this high are widely understood to cause stress in salmonids, and prolonged exposure to these temperatures can result in mortality, or leave salmonids more vulnerable to a variety of temperature-enabled diseases.

With this in mind, we believe it is imperative that the Oregon Department of Fish and Wildlife (ODFW) take any and all steps within its power to protect Deschutes River fish from these dangerously high temperatures. Most importantly, we believe ODFW should immediately implement an angling closure on the Deschutes River after 2 PM, from the mouth upstream to Sherars Falls, until water temperatures are consistently lower than 70°  Fahrenheit.  Such a move would help avoid additional and unnecessary stress, and potential mortality, to the river’s fish from hooking and handling.

We believe the state of Oregon has a responsibility to protect fish (especially when Endangered Species Act-listed fish are present) from the potentially lethal consequences of catch and release fishing when dangerously high water temperatures are present in the lower Deschutes River. A plan should be in place that is automatically triggered when water temperatures at the Moody Gauge reach 68° Fahrenheit. The plan should be progressive, and implemented in a step-wise fashion similar to the following:

  1. Begin daily monitoring of water temperatures when water temperature at the Moody Gauge reaches 68° Fahrenheit.
  2. Close all recreational angling from Sherars Falls to Heritage Landing on a daily basis beginning at 2 PM on any day when water temperatures at Moody reach or exceed 70° Fahrenheit.
  3. ODFW and other resource agencies should call on PGE to release as much bottom water as possible from the Pelton Round Butte Project when temperatures at the Moody Gauge reach daytime maximums of 70°. Article 405 of the Project’s FERC license explicitly empowers these agencies to require PGE to take any “restorative measures” at the Project whenever fish are harmed or endangered as a result of Project operations.

Again, we believe ODFW should be ready to implement these measures quickly and efficiently in the event that water temperatures begin threatening salmonids.

Please take a few minutes to contact ODFW Director Curt Melcher, along with Governor Brown’s Natural Resources Policy Manager Jason Miner, and urge them to implement these sensible measures—including an immediate closure of recreational fishing below Sherars Falls after 2 PM—to protect Deschutes River fish:

Curt Melcher
curt.melcher@state.or.us

Jason Miner
jason.miner@oregon.gov

In the meantime, we would ask that all anglers cease fishing at 2 PM during these periods of high water temperatures. Find some shade, enjoy a cold beverage, and give the fish a much-needed respite.

Dead Chinook - Andrew

From Summer 2015: A dead spring Chinook salmon in the lower Deschutes River. Photo by Andrew Dutterer.

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Lawsuit Update: A Big Day in Court

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The Mark O. Hatfield United States Courthouse. Photo by Krista Isaksen.

On July 17, the DRA again appeared before Judge Michael Simon in Federal District Court for a hearing in our lawsuit against Portland General Electric.  The hearing was scheduled to address several motions that had been filed in the case this spring.

First, PGE had filed a new motion to have the case dismissed—the company’s third such attempt since DRA brought this lawsuit in 2016.  In the current motion, PGE argued that the Federal Energy Regulatory Commission (FERC), rather than federal court, is the most appropriate venue to hear DRA’s claims.  PGE made this argument despite the fact that FERC has no expertise in water quality issues, has not been authorized to implement or enforce the Clean Water Act, and is not involved in formulating state water quality standards and requirements.

Next, the hearing addressed competing motions for “summary judgment” filed by DRA and PGE. With these motions, the parties each argued that the facts and law are sufficiently clear for the case to be decided without the need for a trial. After lengthy argument, Judge Simon indicated that he would likely issue a ruling later this summer.

Here at DRA, we will be eager to read Judge Simon’s analysis of the case. We believe that compliance with water quality requirements at the Pelton Round Butte complex is a critical first step to protecting and restoring this invaluable river, and we will be prepared to continue this important fight if necessary.

As always, this fight would not be possible without the support of people like you. Thank you for all you’ve helped us accomplish, and for your support as we move forward. Watch the DRA blog for further updates on this important case!

Deschutes River Alliance: Cooler, cleaner H2O for the lower Deschutes River. 

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