Round Butte Dam and the Selective Water Withdrawal Tower.
We’ve received several inquiries lately on the status of the DRA’s ongoing lawsuit against Portland General Electric. Since our last update, there have been some developments in the case.
First, a brief recap. Last August, the DRA filed a Clean Water Act “citizen suit” against PGE, alleging hundreds of violations of the water quality certification for the Pelton Round Butte Hydroelectric Project. These violations are directly related to the Project’s installation and operation, since 2010, of a Selective Water Withdrawal facility above Round Butte Dam.
The Project’s water quality certification (known as a Clean Water Act “Section 401 Certification”), issued by the Oregon Department of Environmental Quality, contains several requirements for criteria such as pH, temperature, and dissolved oxygen. These requirements were formulated to ensure the Project complies with Oregon’s water quality standards. These water quality standards, in turn, are designed to protect aquatic life in Oregon’s waters. Since the SWW tower came online, DRA researchers and supporters have witnessed a dramatic decline in ecological function in the lower river.
Algae on rocks, one mile below the Pelton-Round Butte Reregulating Dam.
Soon after the DRA filed suit, PGE filed a motion to dismiss the case, arguing that the Clean Water Act does not authorize citizen groups like the DRA to enforce the requirements found in Section 401 Certifications. PGE argued further that water quality enforcement authority at hydroelectric projects should be given exclusively to the Federal Energy Regulatory Commission (“FERC”), a federal agency with no water quality expertise. Given that the CWA unmistakably authorizes enforcement by citizens (and local state agencies) in these situations, we strongly resisted PGE’s arguments.
In March, after extensive briefing and oral argument, Federal District Court Judge Michael Simon issued an important ruling–important not only for our fight to restore the Deschutes River, but also for river advocates across the country. Judge Simon found that the DRA’s lawsuit—and, by extension, other, similar suits involving hydroelectric projects—are clearly authorized under the Clean Water Act. In fact, according to the federal judge, such an interpretation is “the only construction that is consistent with the text of the [Clean Water Act] and the purpose and policy of the CWA.” This ruling allowed the DRA’s suit to proceed—fantastic news for those who cherish a healthy ecosystem and clean, cold water in the lower Deschutes River. We believe Judge Simon’s decision ultimately will enable us to present evidence, as necessary, of PGE’s violations.
Lower Deschutes River Redband trout. Photo by Brian O’Keefe.
This brings us to the current status of the litigation. Despite the fact that Judge Simon’s well-reasoned, detailed analysis was based on a straightforward reading of the law, PGE has filed a petition asking the Ninth Circuit Court of Appeals to hear an appeal of Judge Simon’s ruling.
In response to this request for appeal, the DRA has now filed two briefs with the Ninth Circuit, arguing forcefully that there is no reason for the Court to hear the appeal, given the Clean Water Act’s clear, unambiguous language on this point. We are now waiting for a decision on whether the Ninth Circuit will hear PGE’s appeal. The Confederated Tribes of the Warm Spring Reservation, a co-owner of the Project, have filed a brief aligning themselves with PGE on the issue of citizens’ enforcement authority. Meanwhile, the states of Oregon and Washington have filed a joint brief on behalf of the DRA.
This issue has great significance for water quality in the lower Deschutes River, and for rivers across the country that are impacted by hydroelectric projects. In PGE’s telling, water quality enforcement authority should not be vested in the citizens and the state agencies who are most knowledgeable, engaged, and invested in water quality. Instead, PGE argues this authority resides exclusively in a federal agency with little interest or expertise in enforcement of water quality law. While perhaps this result would be desirable for PGE and other dam operators across the country, it is certainly not the result intended under the Clean Water Act, which explicitly authorizes citizens to bring lawsuits in just this type of situation.
The Clean Water Act citizen suit provision is an essential tool allowing citizens to secure compliance with critical water quality standards. The DRA will do whatever it takes to protect this important enforcement tool–and to restore clean, cold water and a healthy aquatic ecosystem to our beloved lower Deschutes River.
Keep an eye on the blog for more updates as they develop!
Deschutes River Alliance: Cooler, cleaner H2O for the lower Deschutes River.
Click here to Donate.
Click here to sign up for the Deschutes River Alliance email newsletter.