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.


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Oregon Department of Fish and Wildlife Establishes No-Limit Bass Fishery on the Lower Deschutes River

On Friday, August 4, 2017, the Oregon Fish and Wildlife Commission voted to make the bass fishery in the lower Deschutes River a “no bag limit” fishery, beginning January 1, 2018.

A smallmouth bass caught last week on the lower Deschutes River.

This is a positive step toward dealing with the bass invasion of the past few years. It is also an acknowledgement that we have a problem in the lower Deschutes River. As we’ve noted in previous blogs, bass have been infrequently reported in the lower Deschutes River, in very small numbers, for many years. However, in the past two years the numbers of reported bass have grown significantly, with some anglers this year reporting catches of up to 20 bass per day below Macks Canyon.

These omnivorous and voracious predators feed on a mix of food types including juvenile fish (trout, steelhead, Chinook, shiners, etc.), crawdads, and aquatic insects. As their numbers increase, they pose an increasing threat to the ecology of the lower river.

Unlike in other fisheries where bass have been artificially introduced by well intended, but ill-advised, amateur biologists, the bass in the lower Deschutes River appear instead to have moved up from the Columbia River. This has happened because, remarkably, the lower Deschutes River is now warmer in the spring than the Columbia River. This is due to current selective water withdrawal operations at the tower above Round Butte Dam. During springtime, 100% surface water withdrawal is used to attract juvenile fish to the fish collection facility at Round Butte Dam. This surface water is many degrees warmer than water at the bottom of the reservoir, which was the source of water for dam operations prior to 2010.

The warmer water in the lower Deschutes River attracts bass and allows them to become more active earlier in the year. This gives them more time to feed before the next winter, and an earlier start on spawning.

DRA Board member Steve Pribyl with a smallmouth bass caught last summer.

Perhaps the saddest comment on the new bag limit is that most anglers are releasing the bass they catch in the lower Deschutes, in order to have something to catch in the future as this treasured river continues to change so rapidly. However, we would encourage all anglers to remove these fish from the water. Do not dispose of them on the bank, as that is a violation of rules regarding wasting of game fish.

The need for this change in fisheries management is another unanticipated and unintended consequence of SWW tower operations. And another sign that it’s time to reconsider how the tower is operated, along with current strategies for reintroducing fish above the Pelton-Round Butte Project.


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Walleye. In the Deschutes River?

The fish have spoken. And those fish are walleye. Remarkably, there are now walleye in the lower Deschutes River. As far as anyone is aware, this has never happened before. We wish this was good news. But it’s not.

We’ve been getting reports of walleye being hooked and landed as far upriver as Kloan, at River Mile 7. We’d not mentioned it yet as we were waiting for documentation of a landed walleye. Now we have it–the walleye in the photo below was landed at River Mile 4.5.

Photo provided by Deschutes River guide Brad Staples, pictured on the right.

In addition to walleye, smallmouth bass continue to be been taken in good numbers in the lower river this summer, for the second straight year. Trout and steelhead, not so much.

What does this mean for the lower river? As the lower river ecology and habitat changes due to Selective Water Withdrawal operations, so do the species that thrive in the new conditions. Warmer water attracts warm water fish. As insect populations decrease, piscivorous fish (fish that feed on other fish) increase.

Further, this is not good news for salmon and steelhead juvenile migration. Juvenile steelhead and salmon are preferred food items for walleye and often for bass, much as they are for northern pikeminnow. Bass and walleye are also capable of feeding on crawdads, worms and insects, and generally are known for being highly predatory feeding machines.

Looking into the mouth of the walleye. Photo from American Expedition.

We are repeatedly told by the agencies responsible for Deschutes River management that nothing has changed in the lower Deschutes River since the implementation of surface water withdrawal at Round Butte Dam. But lets consider the list of easily observable changes:

  • Bass and walleye incursion
  • Increased water temperatures throughout the lower river’s 100 miles, from mid-winter through spring and summer
  • Black Spot Disease widely spread in trout, steelhead, and bull trout
  • Invasive nuisance algae
  • Significant change in insect community structure, and decline in adult insect abundance
  • Observations of declining bird populations

Clearly, this is no longer the river we knew prior to 2010. But fortunately, we know these problems are not inevitable. A return to cooler, cleaner water discharged from the Pelton Round Butte Project can begin alleviating these discouraging ecological changes in the lower river. It’s time for the responsible agencies, dam operators, and other parties to admit that the Selective Water Withdrawal tower is responsible for some serious unintended consequences, and begin charting a new path forward for lower river management.

The Deschutes River Alliance will remain on the front lines of the battle to restore this treasured river. Please join us in our efforts.


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Remembering Cam Groner: 1949-2017

It is with great sadness that we announce the passing of former DRA board member and Vice President Cam Groner on July 17, 2017. Cam died quietly and peacefully at the end of a many months-long battle with Creutzfeld-Jakob Disease.

Cam is deeply missed by those close to him. He was incredibly bright, sometimes irascible, strong-willed (some might even say stubborn), and nearly always right. A subversive sense of humor kept Cam from allowing any situation to become too serious. Cam could readily quote from memory Shakespeare, the law, Firesign Theater, song lyrics, and nearly anything else that he had been exposed to at some point in his life. This made him an entertaining delight to spend time with.

Cam was the consummate fly-angler. The real deal. The kind of fisherman whose life was centered around and focused on his passion for fishing. The man could fish. He took huge pleasure in every aspect of it. He was a pleasure to fish with because his joy in fishing was so intense and so contagious.

Cam especially loved fishing for steelhead. Later in life, he traveled to the Dean River in British Columbia as often as he could. He loved the wildness of the place, and the run of huge steelhead there.

Cam on the Dean River

But most of all Cam loved the lower Deschutes River. So much so that he and his partner, Ingrid Brydolf, built a second home in Maupin. It was from there that Cam could fish and entertain friends.

Cam didn’t fish much with guides, but when he did he loved to fish the waters of the Deschutes River along the Warm Springs Reservation with his friends Al Bagley and Matt Mendes. Here’s a video where Cam produces an opera, the Hardy Reel Opera, with Matt in the background. Cam loved to hear that reel sing.

Cam did his undergraduate studies at Yale, acquired a master’s degree from Harvard, and went on to graduate from Northwestern School of Law at Lewis and Clark College. Cam retired as the Chief Legal Officer for Legacy Health. His retirement career was as the first director of the DRA legal team and Vice President of the DRA Board of Directors. Cam was also a member of the DRA Founding Circle.

The rivers and fish that Cam loved benefited greatly from his advocacy and extensive legal background. In his time with the DRA, Cam worked diligently driving processes to find resolutions to the problems facing the lower Deschutes River.

Cam will be missed most of all by his children Christine, Lauren and Geoff, his life partner Ingrid Brydolf, and his best friend and fishing partner Dave Baca. Our heartfelt condolences go to them, and to everyone else who knew and loved Cam.

Memorial contributions can be made to the Cam Groner Memorial Fund at the Deschutes River Alliance. Please note on your contribution that it is for the Cam Groner Memorial Fund. All proceeds donated in Cam’s memory will go towards the DRA’s legal expenses.

http://www.deschutesriveralliance.org/supporting-the-dra/

Contributions can also be made to the Legacy Health Foundation’s Cam Groner Charity Care Fund.

You may also honor Cam by going fishing, and at the end of the day toasting a glass of good Oregon pinot noir to his life and his memory.


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Lawsuit Update: DRA Working to Defend Citizens’ Ability to Protect Water Quality at Hydroelectric Projects

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!


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How Healthy Are Lower Deschutes River Redband Trout? Read Steve Pribyl’s Letter to ODFW.

Lower Deschutes River redband trout. Photo by Brian O’Keefe.

Last week Steve Pribyl, retired ODFW biologist on the lower Deschutes River and DRA board member, sent a letter to ODFW Director Curt Melcher and to each member of the Oregon Fish and Wildlife Commission. The letter responds to recent ODFW assertions regarding the health and abundance of the lower Deschutes River redband trout population. Steve points out several critical misstatements from the agency that misrepresent the results of recent ODFW resident trout surveys. That letter can be read here.

As a brief summary, ODFW has performed electrofishing on the lower Deschutes River each April from 2014-2017 to capture and measure redband trout. After this year’s survey, an ODFW Field Report claimed there “is no indication the population has been adversely effected [sic]” by Selective Water Withdrawal operations, and that “Deschutes redband appeared to be in good abundance based on how easily [sic] they were to catch during this year’s monitoring.” SWW supporters have taken these statements and cited them repeatedly as evidence that the lower Deschutes redband trout population is as healthy and abundant as ever.

Obviously, we are all hopeful that the redband trout population below Pelton-Round Butte is healthy and abundant. However, as Steve explains, there is simply no way to know this based on the ODFW surveys performed to this point. These surveys have all been conducted to collect information on a few metrics, on a limited sample of trout, in only a few locations, at one point in time. This sampling is not designed to, nor is it capable of, estimating trout abundance and overall population health in the 100 miles of the lower Deschutes River. In fact, a 2016 ODFW field report specifically qualified the ability of these studies to assess trout abundance, stating “Abundance will not be evaluated due to the difficulty of accurately estimating trout abundance in large productive rivers like the Deschutes.”

Steve spent 20 years of his 30-year ODFW career on the lower Deschutes River, and performed many of the surveys that ODFW now claims to be “replicating.” In his view, ODFW’s statements on trout population health and abundance are extremely misleading, and are simply not supported by the survey data collected. We are disappointed that ODFW is making such unsupported statements, which are now being repeated by various Deschutes Basin stakeholders. And it is unfortunate that ODFW has not implemented adequate pre- and post-Selective Water Withdrawal monitoring studies to truly evaluate the population health of redband trout in the lower Deschutes River.

Lower Deschutes River Redband trout. Photo by Brian O’Keefe.

It is also unfortunate that such detailed studies were not mandated during the Pelton-Round Butte FERC relicensing process. At that time, ODFW had the authority to recommend various licensing conditions related to fish and wildlife. The agency did in fact recommend several such conditions, which were largely incorporated into the final FERC license. However, ODFW did not recommend that the licensees (PGE and the Confederated Tribes of Warm Springs) perform any type of baseline redband trout monitoring in the lower river, or any post-SWW follow-up monitoring to assess changes in population health and abundance below the Project. This was a missed opportunity: rather than requiring the licensees to monitor and assess redband health populations, any such studies must now be funded and performed by ODFW. The redband studies performed so far seem designed to minimize cost and staff time, rather than to make detailed, accurate assessments about the trout population.

We think it is also worth mentioning that in ODFW’s post-SWW reports on redband trout health, the agency has failed to mention the black spot disease epidemic currently being observed in the lower river. Any discussion of fish health in the lower Deschutes River right now must include the infections being regularly observed in caught fish. Given the high numbers of Black Spot-infected fish observed by anglers these last two years, it is highly unlikely that ODFW has failed to observe the disease in their surveys.

The ventral surface of a redband trout with black spot disease, caught in the lower Deschutes River in late April 2017. Photo by Jamey Mitchell.

In sum, it seems that native redband trout in the lower river have become a lower priority for the management agencies—and the Pelton-Round Butte licensees—than the salmon and steelhead being planted above the Project. This is truly unfortunate, as the lower river trout population is an incredible native resident resource, and much of the year is what draws anglers and others to the lower Deschutes River.

We urge you to read Steve’s letter.


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Lawsuit Update: Court Denies PGE’s Motion to Dismiss

Round Butte Dam and the Selective Water Withdrawal Tower.

Great news! On Monday morning, Judge Simon denied PGE’s motion to dismiss the DRA’s Clean Water Act lawsuit. In its motion, PGE had argued that the Clean Water Act does not authorize lawsuits by private citizens, including groups like the DRA, to enforce water quality requirements at hydro projects like Pelton-Round Butte. Judge Simon’s decision thoughtfully rejected each of PGE’s arguments on the issue, ultimately finding that the company’s interpretation of the Clean Water Act “rewrites the statute.” Read the whole decision here.

Judge Simon’s ruling, which allows the DRA’s lawsuit against PGE to proceed, is great news for lovers of the Deschutes River, and a critical step in our efforts to return cold, clean water to the lower Deschutes. But it’s also a great victory for river advocates across the country: a decision in PGE’s favor would have impacted the ability of citizens and states to protect water quality on all rivers impacted by hydroelectric projects.

This is truly an important decision for the Deschutes River, and we’re eager to finally move on and address the merits of the case. Judge Simon’s ruling ensures that the DRA will have the ability, as the Clean Water Act clearly provides, to hold PGE accountable for violations of water quality requirements at Pelton-Round Butte. This is the first step to restoring the river we all love.

Keep an eye on the blog for more updates on the lawsuit, and on all of the DRA’s science and advocacy efforts. Cooler, cleaner H2O for the Deschutes!

Redband trout, lower Deschutes River. Photo by Brian O’Keefe


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