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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Black Spot Disease in the Lower Deschutes

For anyone who has fished the lower Deschutes River this year, it is not news that many of the fish being caught have Black Spot Disease (BSD). How many fish? We’ve received reports of as many as 100% of 30 fish caught over a three-day trip between Trout Creek and Harpham Flat. Most reports are that 60 to 80% of landed trout have obvious evidence of BSD.

Lower Deschutes River bull trout showing obvious Black Spot Disease. Photo courtesy of Nick Wheeler.

We, along with several of our supporters, have contacted representatives of the Oregon Department of Fish and Wildlife about this issue, and have been told there is nothing to be alarmed about. One of our supporters received an email from ODFW that included the following:

“ODFW has done some research on the effects of blackspot [sic] on spring chinook [sic] smolts in the John Day River and found that the parasite had no adverse effects on condition or survival, even fish that were severely infected performed the same as uninfected fish. Our pathologists also have stated that blackspot [sic] is not categorized as a disease, meaning that it does not appear to effect the host. It is also important to note that blackspot [sic] is very cyclical, and most often comes and goes through time.”

We’ve not seen any research reports from ODFW regarding BSD, although it’s not unusual for these reports to not be advertised or be made readily available. What is unusual is that anglers who fish the bodies of water mentioned by ODFW do not report seeing BSD. This is not to say that BSD isn’t present on the John Day and other rivers, but it’s clearly not present right now to the same extent as in the lower Deschutes.

According to the statement from ODFW, BSD “is not categorized as a disease.” This is a curious claim. Why is it called Black Spot Disease? In all of the scientific literature that we searched, it is always referred to as a disease. This is because infection with BSD results in both systemic inflammation and tissue changes in fish. Inflammation is evidenced by increased cortisol (a hormone associated with stress and inflammation) levels. The skin and scale changes seen on fish with BSD are not caused by trauma. So we have a transmissible infective organism causing inflammation and tissue changes. That meets the definition of a disease.

The fish ODFW representatives have observed with BSD are noted to be in good condition. Yes they are, when they are caught. But no one is performing long-term observation to see what the consequences of chronic infection might be. We are now in the third year of BSD being observed in lower Deschutes River fish, so it’s obvious that more fish are being infected for longer periods of time. None of the studies on BSD to date look at longer-term infections, so those consequences are unknown.

What is known is that fish do die of BSD. According to reports, once fish are infected in the eyes or mouth, survival is limited. And fish with high parasite loads tend to be of lower weight.

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.

Black spot disease is caused by a flatworm (trematode) parasite known in the scientific community as Uvulifer ambloplitis, and also known as “neascus.” This parasite has a complicated life cycle that starts with eggs in water, which hatch and become juveniles known as miracidia, which in turn infect aquatic snails.  In snails this form of the parasite matures into the next life form, known as cercariae.  Cercariae are shed by the snails and become free swimmers, which attach to fish.  Once the cercariae have attached to the flesh of a fish, the fish develops an immune response that causes the dark spot.

Fish-eating birds are the next host, which become infected when they ingest infected fish.  The cercariae develop into adult flatworms, which means that fish-eating birds are internally infected with the parasite.  The parasite then produces eggs, which are shed in feces by fish-eating birds, and deposited in water where the life cycle is reinitiated.

This summer, many have observed decreases in fish-eating birds in the lowest forty miles of the Deschutes. Kingfishers are rarely seen now in that reach of river (they were previously seen in pairs occupying nearly every reach of river), and merganser populations in the lower forty miles have declined. Are these birds becoming infected with neascus and dying? Or is something else going on? Unfortunately, no one seems to be investigating this phenomenon.

Increases in BSD are associated with increased water temperature and increased aquatic snail populations—both conditions that Selective Water Withdrawal Tower operations have created in the lower Deschutes River. Further, research has demonstrated that rather than being “cyclic,” BSD is linked to sustained elevated water temperatures and algae growth.

The likely solution to reducing BSD is a return to cooler water temperatures and less nutrient loading in the lower Deschutes River. This would require that the SWW tower draw more water from the bottom of Lake Billy Chinook before discharging downstream.

Sources

Schaaf, Cody J, Suzanne J. Kelson, Sébastien C. Nussle, & Stephanie Carlson . Black spot infection in juvenile steelhead trout increases with stream temperature in northern California. Environmental Biology of Fish,; April, 2017.

McAllister, CT, R. Tumlison, H.W. Robison, and S.E. Trauth. An Initial Survey on Black-Spot Disease (Digenea: Strigeoidea: Diplostomidae) in Select Arkansas Fishes. Journal of the Arkansas Academy of Science, Vol. 67, 2013

Schaaf, Cody J. Environmental Factors in Trematode Parasite Dynamics: Water Temperature, Snail Density and Black Spot Disease Parasitism in California Steelhead (Oncorhynchus mykiss). Submitted to University of California Berkley for Masters Thesis, May, 2015.


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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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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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Announcing the DRA’s 2016 Lower Deschutes River Water Quality Report

We are thrilled to announce the publication of the DRA’s 2016 Lower Deschutes River Water Quality Report. This report—along with three other reports we’ll be releasing over the next two months—is the culmination of the DRA’s most detailed investigation yet of the causes and extent of the ecological changes occurring in the lower Deschutes River.

An important aspect of the report analyzes hourly water quality data collected at River Mile 99, one mile below the Pelton Reregulating Dam, from February 18 through November 22, 2016. All data collected for pH, temperature, and dissolved oxygen are presented and analyzed, and compared against water quality requirements contained in the state-issued Clean Water Act § 401 Certification for the Pelton-Round Butte Complex, as well as Oregon’s water quality standards for the Deschutes Basin. Read the whole thing here.

This report represents the most complete public analysis yet of the impact of Selective Water Withdrawal operations on water quality below the Pelton-Round Butte Hydroelectric Complex. Key findings include:

  • Oregon’s water quality standard for pH in the Deschutes Basin (6.5-8.5 SU) was exceeded on 234 out of 279 days that data were collected (84%). 43% of the days sampled had pH measurements greater than 9.0.
  • Each year since 2011, Project operators have worked with the Oregon Department of Environmental Quality to purportedly weaken the water quality requirements in the Project’s Clean Water Act § 401 Certification. These changes include:
    • The defined spawning season for salmonids was changed from year-round to Oct. 15-June 15. This change allows the application of a lower dissolved oxygen standard during the non-spawning period (June 16-Oct. 14). However, this newly defined spawning period does not take into account the full season of resident trout spawning and egg incubation, as is required by the Oregon Administrative Rules. This has caused dissolved oxygen levels in the lower Deschutes River to fall below levels required to protect resident salmonids through egg incubation and fry emergence.
    • The water temperature that triggers the blending of cool bottom water from Lake Billy Chinook with warmer surface water has been markedly increased since the Selective Water Withdrawal tower began operations. This has allowed the release of 100% surface water into the lower Deschutes River to continue later into the summer.
  • Changes in pH and dissolved oxygen, documented by this study and ODEQ’s own data, clearly indicate that excess nutrients are being released into the lower Deschutes River from the surface waters of Lake Billy Chinook.

DRA’s 2016 Lower Deschutes River Water Quality Report clearly establishes that, in just seven years of operation, the Selective Water Withdrawal tower at Pelton-Round Butte has severely degraded water quality and threatens aquatic life below the Project. We believe this report will serve as an important document for all basin stakeholders in assessing the impact of tower operations on the river we all love.

A special thanks to all of our supporters, whose generosity and passion for the river has made all of our science work possible. We’d like to take this opportunity to specifically thank the various organizations and foundations who have provided funding to support this critical work, including:

  • The Oregon Wildlife Heritage Fund
  • Maybelle Clark MacDonald Fund
  • Flyfishers Club of Oregon/Flyfishers Foundation
  • Clark-Skamania Flyfishers
  • Mazamas
  • American Fly Fishing Trade Association
  • Tualatin Valley Chapter of Trout Unlimited
  • Washington County Fly Fishers

Cooler, cleaner H2O for the Deschutes!

Photo by Brian O’Keefe



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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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Announcing the DRA’s First-Ever Gathering!

event-photo

The Deschutes River Alliance’s First-Ever Social and Fundraising Event      Saturday, February 11, 1 PM to 5 PM
The Ecotrust Building in Northwest Portland

Join other DRA supporters and lovers of the Deschutes River for an afternoon of fun, food, drink, and more on Saturday afternoon, February 11, 2017.

This is the DRA’s first-ever gathering–an opportunity to visit with friends and other concerned individuals who, like you, have stepped up to help restore the health of the lower Deschutes River.

Seating is limited to the first 150 to register, so act today!

Tickets are just $75 per person, with all proceeds going to the DRA’s efforts to restore the lower Deschutes River, including our efforts to enforce the Clean Water Act at the Pelton Round Butte Hydroelectric Project.

The February 11 afternoon event will feature:

  • A premiere of the DRA’s new documentary film, which highlights the issues facing the lower Deschutes and the DRA’s efforts to restore the river we all love.
  • A short live auction with 12-15 high quality items, including incredible fishing trips and unique fishing gear custom-made for the event.
  • Complimentary wine provided by Lange Winery, and beer provided by Freebridge Brewing of The Dalles and other Columbia Gorge breweries.
  • Delicious locally sourced appetizers.

Bring some friends. Have some fun while supporting the DRA and our important work advocating for the health of the Deschutes River.

Remember, seating is limited to 150. So click here to register now!

Can’t attend but want to help? Click here to support the DRA’s ongoing efforts.

deschutes-salmonfly-hatch-close-up-1a-okeefe-72-1200-copy


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