Lawsuit Update: A Big Day in Court

courthouse

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!

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Lawsuit Update: Another Victory as Court Again Allows DRA Lawsuit to Move Forward

2016 DRA WATER QUALITY REPORT-FINAL 4-10-17

Photo by Rick Hafele

The DRA has won another victory in our ongoing Clean Water Act lawsuit against Portland General Electric. Another request from PGE to dismiss the case has been denied. The decision allows this important lawsuit to continue to move forward.

DRA brought this suit in August 2016, to enforce water quality requirements at the Pelton Round Butte Hydroelectric Project (More background on the suit can be found here and here). In March, PGE and PGE’s co-owner (as a 33 1/3% partner) at the Project, the Confederated Tribes of the Warm Springs Reservation of Oregon (CTWS), filed motions to dismiss the case. They argued that CTWS is a necessary party to the case, but could not be joined as a defendant because CTWS, as a tribal entity, is immune from legal liability under the Clean Water Act. As a result, PGE and CTWS argued that the entire case should be dismissed.

Last week Judge Michael Simon of the Federal District of Oregon determined that the case should proceed. This is great news, as it brings us one step closer to ensuring that DRA’s claims will finally be heard in court.

One result of the Court’s most recent order is that CTWS will now enter the case as a defendant. DRA had elected to sue only PGE, and not CTWS, believing that the heaviest burden of responsibility for the Project’s water quality violations lies with PGE as the primary Project operator. However, both CTWS and PGE argued that the lawsuit could not proceed without CTWS, and Judge Simon has ordered that CTWS be made a formal defendant in the case.

This is the third time in total that DRA has defeated PGE attempts to have this case dismissed. Last year, DRA secured an important victory for clean water advocates everywhere, when Judge Simon determined, contrary to PGE’s arguments, that citizen groups like DRA have the authority to enforce critical water quality requirements at hydroelectric projects. PGE then asked the Ninth Circuit Court of Appeals to review Judge Simon’s decision, which in the face of DRA’s opposition the Ninth Circuit declined to do.

And now, PGE has filed a third motion to dismiss the suit, arguing that Judge Simon should decline to hear the case because the Federal Energy Regulatory Commission (FERC) and state agencies are proper venues for DRA to bring its claims, but not the courts. DRA has fully briefed that issue and will argue it, along with the legal merits of the case, in federal court on July 17.

DRA’s Clean Water Act enforcement case is a critical part of DRA’s advocacy efforts to restore cooler, cleaner water to the lower Deschutes River. As always, this work wouldn’t be possible without your tremendous support. Keep an eye on the DRA blog and social media for further updates on this important case.

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Clean Water Act Lawsuit Update: A Busy Summer Ahead

event-photo

Photo by Brian O’Keefe

The Deschutes River Alliance legal team has a full plate this summer. Our Clean Water Act lawsuit against Portland General Electric (PGE), brought to enforce water quality standards at the Pelton Round Butte Hydroelectric Project, is moving forward quickly. Two court appearances and multiple rounds of briefing are scheduled for the coming months.

Up first is a hearing this Wednesday, May 9, in Judge Michael Simon’s courtroom in Portland. PGE and the Confederated Tribes of the Warm Springs Reservation of Oregon have filed new motions asking Judge Simon to dismiss the case. These motions, filed in late March, came nearly 18 months after PGE’s initial attempt to get the case dismissed. The parties have filed briefs on the new issues presented, and we look forward to arguing in court this week and again moving the case forward.

After that motion is resolved, the next scheduled court date is July 17. On that day, DRA and PGE will present arguments to Judge Simon on the central question of the case: whether PGE is violating the Clean Water Act at the Pelton Round Butte Project. As you may recall, in early March DRA filed a “Motion for Summary Judgment,” arguing that the facts and law in the case are sufficiently clear for Judge Simon to find PGE liable for its numerous violations, without the need for a lengthy trial. Last week, PGE filed its own Motion for Summary Judgment. After extensive briefing on these motions over the summer, on July 17 we will finally have the opportunity to argue the merits of this important case in court.

Through this lawsuit, DRA is seeking to ensure that important water quality standards are met in the lower Deschutes River. We believe this is a critical first step to restoring water quality on this incredible river, and to protecting the fish, insects, birds, and humans who call the river home. We are thrilled to finally have an opportunity to address the central issues in the case, and are looking forward to a busy summer ahead.

As always, none of this would be possible without the incredible support of people like you. We are so grateful for your help getting us to this point, and we will be sure to keep you updated on this important case as it develops.

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

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Lawsuit Update: DRA Asks Court to Find PGE Liable for Clean Water Act Violations

Photo by Rick Hafele

On Monday night, March 5, the Deschutes River Alliance filed a motion in Federal District Court, asking Judge Michael Simon to find Portland General Electric liable for its violations of the Clean Water Act at the Pelton Round Butte Hydroelectric Project. In this “Motion for Summary Judgment,” the DRA outlines well over 1,000 instances over the past several years in which PGE has failed to comply with water quality requirements for temperature, pH, and dissolved oxygen at the Project.

This motion is the latest step in the DRA’s fight to enforce the Clean Water Act and restore the Deschutes River. The document is now in the public record, but we link to it here for your convenience. In it, DRA argues that the relevant water quality requirements, and PGE’s own monitoring data, make clear that PGE is regularly violating the terms of the Project’s Water Quality Certification.

Background

The DRA brought this Clean Water Act “citizen suit” against PGE in August 2016. PGE is required to operate the Pelton Round Butte Project pursuant to a Clean Water Act certification, which identifies several water quality requirements—all agreed to as part of the Project’s licensing process—related to water discharged from the Project. These requirements are there to ensure that Project operations comply with all relevant Oregon water quality standards and, in turn, to protect aquatic life in the lower Deschutes River. However, since SWW operations began, PGE’s own monitoring reports demonstrate hundreds of days where the Project is not meeting these requirements.

In Fall 2016, PGE filed a motion to dismiss the case, arguing that citizen groups like the DRA do not have the authority under the Clean Water Act to bring a lawsuit like this one. In an important victory for advocates of clean water, DRA prevailed on that issue, allowing the case to move forward. Now, for the first time, the merits of the case have been presented to the Court.

Schedule Moving Forward

DRA’s motion will be followed by three months of briefing from both parties, culminating in a courtroom appearance for oral arguments on July 17. If the issues in this motion are not fully resolved after that appearance, a full trial will follow in early December.

Since this case was initially filed, we have completed nearly two years of research, analysis, and organizing—and won an important battle along the way protecting citizens’ rights to enforce the Clean Water Act. Now, we are thrilled to be moving forward to address the merits of this important case. The DRA believes that compliance with all water quality standards at the Pelton Round Butte Project is an essential first step to restoring this invaluable river, and we are eager for the fight ahead to ensure these standards are met.

As always, this fight would not be possible without your incredible support. To all the individuals, businesses, fellow NGOs, and foundations that have gotten us to this point: Thank you! Keep an eye on the DRA blog for updates on this case as they develop.

Below, watch the DRA’s newest video: A River Worth Fighting For.


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Announcing the DRA 2016-2017 Macroinvertebrate Hatch Survey Report

Photo by Rick Hafele

The Deschutes River Alliance is pleased to present its 2016-2017 Macroinvertebrate Hatch Survey Report, prepared by Rick Hafele. As in previous years, this report describes survey data collected by lower Deschutes River fishing guides, documenting the presence and abundance of the major adult aquatic insect hatches on the lower river.

The survey data compiled in the DRA Hatch Survey Reports represent a systematic attempt to document changes in adult insect emergence timing and abundance on the lower Deschutes River. This data, submitted by highly experienced guides, provides the only ongoing assessment of changes to the lower river’s aquatic insect populations.

Here are some of the key takeaways from this year’s survey results and analysis:

  • As in previous years, survey results show that adult abundance of the four major orders of aquatic insects—mayflies, stoneflies, caddisflies, and Diptera (chironomids and crane flies)—is low from spring through fall. Percent of observations with high numbers of adults is rarely above 10% of all observations.
  • Emergence of all major hatches are occurring four to six weeks earlier than they did prior to the commencement of surface water withdrawal operations at Round Butte Dam.
  • The earlier emergence of these hatches is creating a period in the spring (typically early April through late May) when the vast majority of insect hatches now occur. After early- to mid-June insect hatches become scarce and unpredictable.
  • Many river users have reported that wildlife along the lower Deschutes River corridor that depend on aquatic insect adults (e.g. swallows, bats, nighthawks, and song birds) continue to show depressed numbers. This is mostly likely due to a lack of available food.

DRA believes that the above changes in adult insect timing and abundance can be directly linked to the changes in water quality—including higher nutrient loads and warmer water temperatures in the spring and early summer—resulting from selective water withdrawal operations at Round Butte Dam. The survey data summarized in this year’s report, along with reports from previous years, provide key information needed to fully understand the impact of recent changes in the lower Deschutes River.

Read the full report here.


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Watch the DRA’s New Documentary Video: “A River Worth Fighting For”

We are proud to present the DRA’s new documentary video! Titled A River Worth Fighting For, the video examines why Selective Water Withdrawal operations at Round Butte Dam are negatively impacting the ecology of the lower Deschutes River. Then, featuring interviews with Maupin government officials and business owners, the video highlights how these ecological changes are harming businesses and communities that depend on a healthy Deschutes River. And it details the efforts of the Deschutes River Alliance to fight back.

The video premiered last Saturday, February 11, to a full house at the DRA’s second annual Gathering and Auction. It was a fantastic afternoon, with attendees showing incredible support for the DRA’s efforts on behalf of the lower Deschutes River. Look for a full recap of the event in the days to come.

In the meantime, we’re pleased to present A River Worth Fighting For:


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New Analysis Shows Significant Ecological Decline in Lower Deschutes River After Commencement of Selective Water Withdrawal Operations

Photo by Brian O’Keefe

In the years since Selective Water Withdrawal (SWW) operations began at the Pelton Round Butte Complex, longtime Deschutes River users have observed and reported what appear to be major ecological changes below the dams. A new report confirms these observations. A new analysis by Portland State University Assistant Professor Patrick Edwards, Ph.D., establishes that the macroinvertebrate community in the lower Deschutes River has significantly changed since surface water from Lake Billy Chinook began to be released through the SWW tower downstream into the lower river. According to Professor Edwards’ analysis, the post-SWW community contains “more non-insect taxa, such as worms and snails, and other taxa that are tolerant to poor stream conditions.” Further, there are now fewer “mayfly, stonefly and caddisfly taxa that are sensitive to poor stream conditions.”

Some background on Dr. Edwards’ study is useful. In April 2016, R2 Resource Consultants, a company under contract to Portland General Electric, released a Lower Deschutes River Macroinvertebrate and Periphyton Study. This was a four-year study, mandated by the Pelton Round Butte Project’s Clean Water Act certification, that aimed to compare post-SWW conditions in the lower Deschutes River to pre-SWW conditions that were documented in a baseline study.

Round Butte Dam and the Selective Water Withdrawal Tower.

The conclusions in the R2 study were perplexing. Among other findings, the authors stated that “[s]tudy results did not identify large changes in the macroinvertebrate community before and after SWW implementation.” The DRA Science Team, which had been following the development of this study closely, identified several problems with the final report, and in the following weeks worked with several outside experts to assess the data analysis and statistical methods used in the study.

Then, a few weeks after the R2 report was issued, the Oregon Department of Environmental Quality (ODEQ) stepped in. In a letter to PGE, ODEQ deemed the R2 report inadequate and deficient in several key components, and requested that PGE provide a response to correct the “serious shortcomings” in its analysis.

PGE responded to the ODEQ letter by stating that it would address the agency’s concerns and would summarize this additional work in an addendum to the original report—a process PGE estimated would take 6-12 months to complete. It now has been 19 months since that response letter was sent, and the promised addendum still has not issued.

In the same letter, PGE stated that despite its shortcomings, the initial report—which had already been submitted to the Federal Energy Regulatory Commission (FERC) —satisfied PGE’s obligations under the FERC license for macroinvertebrate monitoring. In other words, PGE claimed it had met its requirements with a report that ODEQ had identified as deficient in several respects.

We at the DRA felt it was essential that an accurate analysis of the pre- and post-SWW macroinvertebrate data be completed as quickly as possible. To that end, we contracted with Dr. Edwards to perform a thorough and accurate statistical analysis of the same data used in the R2 report. Dr. Edwards is highly qualified to perform this analysis, as his PhD in environmental science included extensive use of multivariate statistic—an analytical technique commonly used to assess changes in macroinvertebrate communities. The purpose of Dr. Edwards’ analysis was to assess the characteristics of the macroinvertebrate community pre- and post-SWW.

Photo by Brian O’Keefe.

The results of Dr. Edwards’ analysis are truly concerning. Data collected in the springtime showed that the post-SWW community has significantly fewer mayflies, stoneflies, and caddisflies—all species that are more sensitive to poor stream conditions. Data from both the spring and fall seasons showed an increase in taxa that are more tolerant to poor stream conditions, including worms and snails.

As a result of Dr. Edwards’ analysis, there is sound science confirming what many have suspected for years: SWW operations are significantly altering the ecology of the lower Deschutes River. The discharge of surface water from Lake Billy Chinook has caused serious, negative impacts to water quality in the lower river, and those impacts are leading to significant changes in the insect community below the dam complex. Negative changes to aquatic insects are a serious concern, as they support the entire food chain within the river, particularly resident trout, juvenile salmon and steelhead, and wildlife along the river – including birds and bats. Sound science establishes that these changes are statistically significant. DRA believes strongly that these changes can and must be reversed.

Presumably, if PGE’s initial analysis of this data had been sound, efforts in the intervening months and years could have been focused on addressing the ecological decline in the lower river. We certainly hope that work will commence, at long last, but we are proceeding with legal action to ensure no further delay.

For more information about Dr. Edwards’ analysis, read Rick Hafele’s summary of the report here.

To read the full report, click here.


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