DRA Supporter: Ryan Emory. How recent trips to the Deschutes led an Army veteran and fly fisherman to the Deschutes River Alliance

Ryan Emory grew up in Oregon rafting and fishing on the Deschutes River. His dad spent three days a week working as a dentist, spending the rest of his time fishing on Oregon’s rivers, including the Deschutes, and he took his sons with him.

“My earliest memories are of being on a river, the Deschutes in particular,” said Ryan in a recent phone conversation. “The lore is that I was on a jet sled from Dutchman Flat (now known as Harpham Flat) at two weeks old.”

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Ryan left Oregon to serve with the 10th Mountain Division, 82nd MED Air Ambulance, and 46th Medical Task Force as a Combat Medic and Radiological Tech in Somalia.  Ryan was in Somalia and participated in the Battle of Mogadishu (made famous by the movie “Black Hawk Down”).  Ryan recalls thinking in the heat of the action, “If I make it home, I’m going to fly fish every day for the rest of my life.”

Since serving in the military, he has lived in Denver for all but one year. He is a mentor for Project Healing Waters – an organization very dear to him. There he found a cadre of active duty soldiers transitioning to civilian life.

He makes a point to get his family to Oregon for two weeks each year so that they can experience his childhood playground. The last two years Ryan and his family have made it back to the Deschutes as part of their annual trip to Oregon. What he experienced opened his eyes to the problems in the river, and led him to the Deschutes River Alliance.

His first inkling of changes in the river occurred in the summer of 2018. “When we were fishing last year, I noticed that the fish were holding so far underneath the water,” he said. “For the fish to change their behavior and their eating habits that dramatically—it just tells me that the river itself was damaged some way, or something was going on.”

This summer, he slipped and fell on algae on the river rocks, which led him to research what was going on. That’s when he found the DRA’s videos, and another lightbulb turned on. “It wasn’t until I got home and saw the videos that I remembered looking at the cliffs, and not seeing any swallow nests [on this trip].”

Ryan’s observations – thick brown algae covering the rocks, a lack of insects and birds – are some of the same observations that led to the creation of the DRA.

The DRA’s mission was what made Ryan want to become a supporter: making change happen on the river now.

“It’s so important that we fix this now, so our kids can experience this later,” he said. “It’s imperative that we do it now. And we have the chance to do this now.”

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Support HB 4109 and Phase Out Chlorpyrifos

Last year, the pesticide chlorpyrifos was reported in the lower Deschutes River at levels that exceed the toxicity limits for fish, other aquatic lifeforms and humans set by the Environmental Protect Agency. The Oregon Department of Environmental Quality reported the presence of chlorpyrifos in the lower river in its biannual Clean Water Act reporting requirements.

In response to that reporting, the Deschutes River Alliance supports HB 4109 in its efforts to phase out chlorpyrifos in Oregon. HB 4109 is currently waiting for a vote in the Senate after passing in the House.

Chlorpyrifos is a neurotoxic pesticide chemically related to the nerve gas sarin. It is extremely lethal at concentration to aquatic organisms and fish. Human exposure to chlorpyrifos is also dangerous. The presence of chlorpyrifos adds yet another pressure on the lower Deschutes and its resident, native, and migratory species. This pesticide is used primarily on alfalfa and Christmas trees in Oregon.

HB 4109 will phase out the purchase, sale, and use of the chlorpyrifos pesticide statewide by January 1, 2022. The bill also orders the Oregon Department of Agriculture to revoke the registration of any pesticide that contains chlorpyrifos. Through these requirements, the pesticide’s future purchase and use will not be legal statewide. From the effective date, any purchase, sale, or use of the pesticide will be punishable by a fine.

The bill needs your support. To voice your support for the lower Deschutes and its already ailing ecosystem, fish and wildlife, contact your state senator. You can find your state senator here. Let your state senator know that you support HB 4109 and any ban on chlorpyrifos usage, and that the lower Deschutes River needs any and every additional protection it can get.

 

2020 Auction and Gathering a Huge Success!

It was the hottest – and most golden – ticket in town at the DRA Annual Auction earlier this month. Hundreds of people ate, drank, and supported the DRA at our most successful event ever.

Stories were swapped, glasses were raised and wallets were opened in support of the work we do to protect the lower Deschutes River. There was even a rousing rendition of “Take me to the River,” by DRA board and staff.

Winners left with cases of wine, trips to Mexico, amazing gear, beautiful art work and even an Aire Outcast 8 ft. pontoon boat with all accessories!

You can check out photos of the event here.

Fish Reintroduction Continues to Disappoint

Portland General Electric’s more than decade long attempt to reintroduce spring Chinook, summer steelhead and sockeye salmon upstream from the Pelton Round Butte Hydroelectric complex continues to disappoint as evidenced by the very low numbers of adult returns to the Pelton Trap.

The 2019 spring Chinook run year is now complete and it is now possible to compare this return to past years. Based on spring Chinook tracking, only 47 project-origin adult fish returned in 2019. This is similar to past years and represents a tiny fraction of the number needed for a self-sustaining, harvestable population above the Project.

Similarly, a total of only 53 project-originating sockeye were captured at the Pelton Trap in 2019. With the exception of an adult run of 536 sockeye in 2016, a largely unexplainable return some experts have characterized as a “sweepstakes event,” the 2019 return of 53 sockeye is consistent with other return years. This is less than 1% of the 30,000 to 40,000 adult sockeye return numbers suggested as possible by some reintroduction proponents.

While both spring Chinook and sockeye return years correspond to calendar year, summer steelhead are not so neat and tidy. The current 2019-20 run year – from June 1, 2019 to May 1, 2020 in the Deschutes – is not complete at this time. Through this past December, a total of 46 Project-originating adults have been captured at the Pelton Trap. This low capture to date is no different than past years, which is to say disappointingly low.

It is doubtful the number of returning reintroduction adult steelhead for this run year will get much better. The 2019-20 summer steelhead return numbers at Bonneville Dam (generally the only reliable dam count for anadromous fish in the Columbia basin) have been very low. One wouldn’t expect a sudden, unexpected capture of reintroduction origin fish the rest of the run year.

Based on previous years’ returns, about 45% of the Pelton Trap capture takes place after January 1 each year. Using that figure, we can estimate that the total 2019-20 reintroduction return of summer steelhead will be around 67 total fish, a poor and unsustainable return similar to previous years.

If these extremely low return numbers of Project-originating adults are not depressing enough, consider what DRA board members and staff learned in a meeting this past fall with ODFW managers and biologists working on this effort. In response to DRA’s question about adult salmonid reintroduction goals, ODFW shared that they have no numeric goals to measure reintroduction success. Accordingly, after 10 years of failure to return even modest numbers of adult salmonids above the dams, OFDW still has no metric against which to gauge success. Absent such a metric, it cannot evaluate the prospect of sustainable returns and thus, by definition, cannot shape a viable future.

The SWW Tower and fish reintroduction program must be called what it is – a failure in every metric. Fish return numbers show no progress after a decade of results. The returns are far below the numbers needed for sustainable populations. All this while the SWW Tower is polluting and degrading the lower Deschutes River. Without a definition of success, the project will continue the unsuccessful approach while continuing to harm the lower river. Changes to the fish reintroduction effort and SWW Tower operations, not more time, are the only way to stop that degradation while facilitating fish returns.

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Lower Deschutes River Now Listed Under Clean Water Act for Pesticide

The Oregon Department of Environmental Quality (ODEQ) released its draft Integrated Water Quality Report in September, 2019.  The Federal Clean Water Act (CWA) requires Oregon to submit the report to the Environmental Protection Agency (EPA) every two years.

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Photo by Brian O’Keefe

This year’s draft report contains an unpleasant surprise.  Chlorpyrifos is, for the first time, listed as limiting water quality in the lower Deschutes River for the lowest 96 miles of the river.  That means that once the final report is submitted, the lower Deschutes River will be listed under CWA §303(d) for its ongoing limitations of water quality due to warm temperature, high pH and low dissolved oxygen and will now include chlorpyrifos.

Chlorpyrifos is a widely used agricultural pesticide that is toxic to insects, fish, birds and humans.  It is a neurotoxin (cholinesterase inhibitor) that is chemically related to the World War I nerve gas, sarin.

Chlorpyrifos was detected by ODEQ in the stretch of the Deschutes River water located between Pelton Dam and the Pelton Reregulation Dam (the two lowest dams of the Pelton-Round Butte Hydroelectric Complex) in 2018.

The detected levels were in excess of all EPA guidance for aquatic levels of chlorpyrifos as chlorpyrifos is very toxic to aquatic insects and fish of many species.

Chlorpyrifos is applied via spray application to agricultural fields and is widely used for many kinds of crops.

Chlorpyrifos has a controversial history.  Its use has been banned in Europe and was up for consideration for a ban here in the U.S., but the ban proposal was dropped by the EPA in 2017 at the direction of the presidential administration.  A statewide ban has been proposed here in Oregon, but failed in the Oregon legislature in the 2019 legislative session.

DRA has been in consultation with a legislative representative and some other organizations.  We are too late to seek another at a ban in 2020 due to the short legislative session, but will prepare for the 2021 session.

President’s Message: A New Age Begins to Dawn in the Deschutes Basin

By Greg McMillan

Our favorite river, and its tributaries like the Crooked River, have suffered abuses and hard times for many decades.  The pressures on water quality, availability, and the biology they support have increased.  There are now three aquatic species listed as threatened or endangered under the Endangered Species Act in the Deschutes Basin.  There are species that have already been extirpated from their historic ranges within the Basin.

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Photo credit Greg McMillan

In this post is news of another insult.  Chlorpyrifos pesticide has been detected in the Deschutes River in levels that exceed what the Environmental Protection Agency has set as guidelines to protect aquatic life.

But there is more hope for the Deschutes Basin and its aquatic resources today than in a very long time.  It is said (perhaps truthfully so) that the Chinese character for crisis is a combination of the characters for danger and opportunity.  And so it is with the Deschutes River and its tributaries.  We are on the verge of several dangerous opportunities.  It’s taken years of hard work to arrive at this new threshold.

The multi-year water quality report recently released by Portland General Electric and the Confederated Tribes of the Warm Springs Reservation confirms what we here at the DRA have known since 2014.  Having consensus on the scientific issues gives the parties in our lawsuit a common path forward to resolve the Round Butte Dam Selective Water Withdrawal Tower related water quality problems.  It will take time and hard work, but finding consensus is a most important first step.

The other large water problem in Central Oregon is related to water allocation for irrigation.  That issue first came to a head with the listing of the Oregon Spotted Frog (OSF) population as threatened under the Endangered Species Act in 2016.

This status of the OSF is due to de-watering of its native habitat in the reaches of the Upper Deschutes River below Wickiup Dam during fall and winter months.  Water is held back for storage for irrigation purposes during those months, leaving the back-channels and marsh habitat of the frog below the dam dry.

The irrigators and the City of Prineville have applied to the U.S Fish and Wildlife Service for an Incidental Take Permit to allow for the loss of Spotted Frogs, as well as bull trout and steelhead due to water allocation issues.  The permit requires a Habitat Conservation Plan (HCP) to off-set any losses due to the water withdrawals by the irrigators or City of Prineville.

As you read this, many organizations, agencies and individuals will be submitting comments on a draft HCP.  DRA is one of the organizations submitting comments.  It’s our view that the HCP is inadequate to provide adequate protection for the target species.  We will be participating in the HCP process and advocating for changes in water allocation.

You can read our comments here.

As we move forward this is an opportunity to re-think how water is used in the Deschutes Basin.  The plan, once approved, will be binding for thirty-years.

We will be working with other groups and our Oregon legislators to enact a ban on the insecticide chlorpyrifos.

These crises are indeed dangerous opportunities.  There is no better time to affect how the future of the Deschutes River and its tributaries will look for the next decades to come.  We have to get it right for the river and for the next generations.  There will be no other time like right now, no other opportunities like those before us to protect our river.

Please help us in this time of need and opportunity.  Your donations will help us advocate for the changes that need to be made. There are issues that need to be resolved and with a sense of great urgency. You can donate online here.

DRA Legal Update

By Dan Galpern

To restore and protect the Deschutes River, time and again the DRA has turned to bedrock federal law—including the Clean Water Act, which commits the nation to “restore and maintain the chemical, physical and biological integrity” of U.S. waters. It is therefore important, at the outset of this brief update, to recognize that the CWA expressly enables citizens, including public interest groups, to enforce the law when government agencies fail to act.

Accordingly, on August 12, 2016, on behalf of its supporters and in the public interest, DRA filed suit in federal court to uphold critical CWA water quality standards that DRA alleged were being violated by PGE’s operation of the Pelton Round Butte Hydroelectric Project and, in particular, operation of the Project’s Selective Water Withdrawal tower.

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Photo by Rick Hafele

Section 401 of the Clean Water Act is central to DRA’s case. It requires applicants for federal licenses (such as the FERC license for the Pelton Round Butte Project) to provide the licensing agency (here, FERC) with a state certification (the CWA Cert) that project discharges will comply with minimum state water quality standards. Those standards are written to support specified uses, including fishing and recreation. DRA’s lawsuit was based on what it alleged to be documented exceedances of standards for temperature, dissolved oxygen, and pH. Arguments in court centered on whether such discharges violated the Project’s CWA Cert. DRA’s next step after obtaining such a ruling from the court would have been to seek an order from the court prohibiting continued operation in violation of such standards. But the lower court rejected DRA’s arguments, and DRA appealed that ruling.

A critical interim legal development merits explanation. Seven weeks after DRA’s initial filing, PGE brought a motion to dismiss. Its grounds: that the Court retained no authority to decide the case. In short, the company argued that the CWA enabled the state to include conditions in a CWA Cert but that, once done, only the federal licensing authority—here, the Federal Energy Regulatory Commission—could enforce those conditions.  Not EPA, not states, and not citizens.

Briefing and argument ensued, and DRA finally prevailed in March 2017. In a published decision, the Court determined that “citizens may sue both to require a facility to obtain certification and to enforce conditions in an existing certificate.” [Emphasis added.] The Court declared its reading of the citizen suit provision to be “the only construction that is consistent with the text of the statute and the purpose and policy of the CWA, while also upholding a state’s authority to enforce its own water quality standards.” Deschutes River Alliance v. Portland General Electric Company, 249 F.Supp.3d 1182, 1194.

PGE then appealed that decision to the 9th Circuit Court of Appeals, and DRA opposed that appeal. In August 2017 the 9th Circuit summarily denied PGE’s appeal. Accordingly, the district court’s determination that citizens (and states) have the right to enforce terms and conditions of §401 CWA Certs remains undisturbed. To date.

A series of proceedings, including briefings and hearings, subsequently ensued. In order: (1) The Confederated Tribes of the Warm Springs Reservation, as co-owner of the Project, sought to dismiss the case on the ground that it was a necessary party to it and yet immune from federal suit. But, after briefing, the court determined that while the Tribe was a necessary party, it was not immune, and so the Tribe was joined in the case as a defendant. (2) All parties then filed for summary judgment on the merits, and argument was held. (3) The district court rejected DRA’s motion for summary judgment and granted summary judgment to PGE and the Tribe, thus dismissing the case.

In its August 3, 2018 opinion and order, the court rejected DRA’s strict interpretation of the law, namely, that every exceedance of a water quality standard constitutes a violation of the CWA Cert and its associated water quality monitoring and management plans. The court agreed that, based on the company’s analysis and modeling, the CWA Cert had, in fact, anticipated that the Project would conform to state water quality standards. Nonetheless, the Court stressed that while “this calculation may have been wrong does not necessarily mean that Defendants are violating their Certification.” Deschutes River Alliance v. Portland General Electric, et al., 331 F. Supp. 3d 1187, 1209 (Aug. 3, 2018) (emphasis in original).[1]

DRA respectfully believes that the district court erred in several critical respects, including its deference to DEQ as to applicable standards and the compliance record and the court’s disinclination to read CWA Cert water quality conditions as strict limitations. Accordingly, on October 17, 2018, DRA appealed the Court’s final order and opinion to the 9th Circuit Court of Appeals. Two weeks later, PGE and the Tribe each filed notices of cross-appeal, albeit on a protective basis—that is, “only in the event that the court of appeals reverses the judgment in defendant’s favor on the merits.” Accordingly, through these conditional appeals, the 9th Circuit could be required to review the district court’s rejections of the earlier PGE and Tribe motions, that is, those seeking dismissal for failure to join a necessary party and seeking to dismiss for lack of jurisdiction.

In the meantime, however, PGE and the Tribe released their long-awaited contracted study of Project impacts on critical elements of Deschutes River water quality. As DRA previously reported in these pages, the DRA Science Team closely reviewed the report after its publication, and DRA deemed substantial portions of it to be sound and significant. Thus, a meeting of the minds now may be more feasible than before. In part for this reason, the parties have delayed briefing at the 9th Circuit to allow for settlement talks. At this juncture, we cannot foretell whether settlement will be achieved, but DRA is determined fully to test these waters to discern if they harbor a more direct course to restoration of the ecological integrity of the lower River. Crucial determinations in this regard may materialize in the next several months.

Finally, we must turn to a regrettably relevant aspect of the Trump Administration’s frantic drive to eliminate environmental protections by executive order. In late August 2019, Andrew Wheeler, Administrator of the Environmental Protection Agency­—and former counsel for the now-bankrupt coal company Murray Energy—published a draft rule that would eviscerate Section 401 of the CWA if enacted. Among other things, the rule would specify that it is the federal licensing agency alone that can enforce CWA Cert terms and conditions. DRA’s comments to EPA, filed on October 21, 2019, expose the agency’s attempted regulatory legerdemain as contrary to the specific terms of the CWA, and warns that the agency’s “patent attempt to displace citizen and state authority to enforce §401 terms and conditions will not stand.”  See here.

Though we scarcely knew it at the time, we were in good company. Over 200 other substantive comments were filed on the final day EPA allowed comment—even though the draft EPA rule, on its face, appeared highly and merely technical. By my office’s analysis, the overwhelming majority of these (~78%) were squarely against the proposed rule. We are now reviewing the major comments, including those by industry, to discern prospects for legal challenge — if and when the EPA rule becomes final.

Former Supreme Court Justice William Brennan once stated emphatically that “enforcement of the law is what really counts.” DRA is mostly doing that, but at times we also need to defend the law itself.

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The writer serves, along with Doug Quirke of Oregon Clean Water Action Project, as outside counsel to DRA.

[1] In its opinion the district court also observed that “[t]o the extent it has turned out not to be the case that operation of the SWW pursuant to the management plans can result in compliance with state water quality standards, the appropriate challenge would be to DEQ’s approval of the Certification itself—not to Defendants’ operation of the Project. Id. at 1201. The Court also cited to DEQ’s publicly stated intention to modify the CWA Cert in a process that will include a notice and public comment period. Id. at 1197. DRA intends to fully participate, assuming that DEQ follows through.