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.


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

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DRA Heads Back to Court

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

The Deschutes River Alliance’s important Clean Water Act lawsuit against Portland General Electric is headed back to court.  2018 will be a critical year in our fight to protect and restore the lower Deschutes River.

We are moving aggressively ahead. On February 26, the DRA’s attorneys will be filing a Motion for Summary Judgment, asking the court to find PGE in violation of its Clean Water Act certification for the Pelton Round Butte complex. The DRA has identified nearly 1,700 violations of the certification, which was designed to protect the water quality and ecological health of the lower Deschutes River. Oral arguments on this motion are scheduled for July. If successful, the DRA will then ask the court for a remedy to these frequent violations that will lead to improved water quality in the lower river.

Photo by Brian O’Keefe

The hard work starts now. The lawsuit we are engaged in is an essential component of the DRA’s advocacy efforts on behalf of the lower Deschutes River and the fish, wildlife, and people who call it home. And the next steps in this litigation, over the coming months, will be critical to the DRA’s efforts to restore cool, clean water below the Pelton Round Butte Project. Keep an eye on the blog for more updates on this important case.

As always, this fight wouldn’t be possible without the support of our many hundreds of contributors—the individuals, businesses, foundations, and allied organizations who are not ready to give up on a healthy future for the lower Deschutes River. As we pivot back to court, we need your support more than ever. Please join us at our second annual benefit auction in February, and make a contribution today to support our battle for the Deschutes River.


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

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It’s the DRA’s Fourth Anniversary! Help Us Celebrate and Move Forward.

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Dear Deschutes River Alliance Supporter,

As a busy summer nears its end and we transition into fall, we would like to take a moment to reflect and to share our immense gratitude for your support and what it has helped us accomplish.

August has truly been a month for the books. In addition to our ongoing science work, we also celebrated a huge victory in our lawsuit against Portland General Electric. Last week, the U.S. Court of Appeals for the Ninth Circuit sided with DRA and refused to hear a PGE appeal that would have delayed this important lawsuit from moving forward. This decision also left in place a crucial ruling we secured this spring, affirming the rights of citizens to enforce water quality requirements at hydroelectric projects.

We are proud to say that this month also marks the four year anniversary of the official establishment of the Deschutes River Alliance as a 501(c)(3) nonprofit organization. Over the past four years, the DRA has worked tirelessly to restore cooler, cleaner water in the lower Deschutes River. Besides our important victories in the courtroom, the DRA Science Team has been diligently documenting the sources and extent of the ecological changes occurring in the lower river.

Of our many accomplishments in that time, here are a few we are particularly proud of:

  • A thermal imaging study of the lower Deschutes River and the area around the three dams of the Pelton-Round Butte Complex. This allowed us and others to have a better understanding of the temperature behavior of the river between the PRB Complex and the Columbia River.
  • Two years (and counting) of algae and water quality studies on Lake Billy Chinook and the lower Deschutes River. This work documents the changes in water quality that have occurred since selective water withdrawal operations began, including the water quality violations that are at the core of our lawsuit against PGE.
  • Three years (and counting) of our annual adult aquatic insect hatch survey. This survey was designed by DRA Board member and renowned aquatic entomologist Rick Hafele, to gather data on hatch timing and densities.
  • Over one year of benthic aquatic insect sampling in two locations in the lower river, to document trends in subsurface aquatic insect activity. This study, along with the hatch survey results, indicates an increase in worms and snails along the river’s bottom, and a decrease in adult aquatic insect populations in the air.
  • Funded a GIS mapping project of water quality in the lower Crooked River, to better understand the source of the pollution load entering Lake Billy Chinook.
This and more have been achieved over the last four years. None of this could have been achieved without the dedication of people like you. You are what keep us on the water and in the courtroom fighting to restore the river we all love.

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Our mission continues to drum in our ears. It beats stronger with each day. As the river grows quieter, our voices grow louder.

Take a moment to listen to board member and key science team leader, Rick Hafele, as he masterfully recounts the abundance of activity that once filled the Deschutes River.

“Song for the Deschutes”
-Rick Hafele



This is where we stand. As we enter our fifth year, we are proud to take with us many victories, but the final battle has not yet been won. After our critical legal victory this month, we are entering a new stage of our Clean Water Act lawsuit against Portland General Electric. Now more than ever, we need your help in our fight to protect and restore this spectacular river.

Many of you have a long history on the Deschutes. All of you have at least one story to tell of time spent by or in its waters. If you have been to the Deschutes this summer, you are likely walking away with a different tone to the story of your day. Maybe instead of catching steelhead, you hooked bass or walleye. Maybe you noticed the failure of caddis hatches to materialize in the evening.  Maybe you left without the sounds of songbirds or the cloud of insects trailing behind you.

Rest assured that this fight is not over. We can revive the once vibrant display of the Deschutes River that you’ve long known. Thank you for your support over the past four years, and cheers to Year Five: may it be the loudest ever.

 


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

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Lawsuit Update: DRA Secures Important Victory For Clean Water Advocates

Photo by Brian O’Keefe.

For months, the DRA has been working to defend citizens’ authority to enforce water quality requirements at hydroelectric projects. This past Monday, August 14, the U.S. Court of Appeals for the Ninth Circuit appeared to put this critical question to rest by siding with the DRA and refusing to hear a PGE appeal on the issue. This decision will allow DRA’s critical Clean Water Act lawsuit to proceed, and is an important victory for clean water advocates across the country.

A full recap of the lawsuit to this point can be found here. In short, PGE has sought to persuade the federal district and appellate courts to dismiss the DRA’s lawsuit, arguing that citizen groups like the DRA have no authority under the Clean Water Act to enforce water quality requirements at hydroelectric projects. This spring, Judge Michael Simon, of the District of Oregon federal court, roundly dismissed these arguments, affirming that the Clean Water Act “citizen suit” provision clearly authorizes lawsuits like the DRA’s. PGE then petitioned the U.S. Court of Appeals for the Ninth Circuit to hear an appeal of that ruling.

On August 14, after reviewing the parties’ briefing, a Ninth Circuit panel of judges denied PGE’s request for permission to appeal. This decision will leave Judge Simon’s important ruling undisturbed and allow DRA’s lawsuit to move forward.

Round Butte Dam and the Selective Water Withdrawal Tower.

The Ninth Circuit’s decision has great significance for water quality in the lower Deschutes River, and for other rivers across the country that are severely impacted by hydroelectric projects. DRA has been working diligently for many months to protect citizens’ essential enforcement authority, and will continue to do so if necessary. And now, we are eager to present the merits of our case to Judge Simon.

DRA’s Clean Water Act lawsuit is a critical part of our efforts to restore clean, cold water and a healthy aquatic ecosystem to the lower Deschutes River. Keep an eye on the DRA blog for more updates as they develop in this important case.


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

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