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