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!

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

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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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A Small Parasite is Likely Killing Deschutes River Spring Chinook

The Deschutes River population of wild spring Chinook salmon is in trouble. A pre-season run forecast by the Confederated Tribes of the Warm Springs Reservation (CTWS) and the U.S. Fish and Wildlife Service predicts that in 2018, only between 127 and 448 adult wild spring Chinook will return to the Deschutes River to spawn in the Warm Springs River.

This predicted return is considerably lower than the average return over the last 10 years of 685 wild fish, which itself is only around half of the optimum escapement goal for the run (identified in Oregon’s Administrative Rules as 1,300 fish per year). As an organization concerned with the health and abundance of all wild fishes in the Deschutes River, DRA finds this prediction very alarming, and is focused on understanding why this decline is happening and what can be done to reverse it.

As with other wild salmon runs in the Pacific Northwest, there are several possible explanations for the decline of Deschutes River wild spring Chinook. But there is one very likely culprit that DRA feels is being ignored. In recent years, there has been a dramatic increase in the lower Deschutes River of the parasite Ceratonova shasta. This salmon-killing parasite, historically not a significant mortality factor in the lower river, is now abundant, and is having demonstrable impacts on spring Chinook. Recent studies and observations show that it is infecting and killing juvenile Chinook in the lower Deschutes, and may also be responsible for high pre-spawning mortality of adult spring Chinook. This rise in Ceratonova shasta is likely causing significant harm to the already fragile wild spring Chinook population, and also jeopardizing efforts to reintroduce spring Chinook above the Pelton Round Butte Hydroelectric Project, as those reintroduced juveniles and adults must migrate through the Deschutes River’s lower 100 miles on their journey to and from the ocean.

Why is this happening now? What more can be done to protect this important and fragile population of wild spring Chinook salmon?

Lower Deschutes River Chinook salmon. Photo by Brian O’Keefe.

Ceratonova Shasta in the Lower Deschutes River

            To understand why this parasite is so prevalent now, some background on the organism and its life cycle is important. Ceratonova shasta (or C. shasta), which is microscopic in size, is present in many Pacific Northwest streams and can be lethal to some salmonids, including Chinook salmon. It has been extensively studied for many years, and some of the original life history research on the parasite’s life cycle was done in the Deschutes River system. C. shasta has an interesting life cycle in which a small polychaete worm, Manayunkia speciosa, serves as an intermediate host which sheds the infective C. shasta organism into the water. This stage of the organism, the actinospore, then infects a fish, and the parasitic infection can be lethal from harm to the kidney and digestive system.

Life cycle of Ceratonova Shasta. Source: Oregon State University, http://microbiology.science.oregonstate.edu/deschutes-river

Historically, C. shasta has been more prevalent in warmer southern Oregon rivers, and was not thought to be a significant problem in the lower Deschutes. Unfortunately, this no longer appears to be the case. According to the U.S. Fish and Wildlife Service, in 2014 staff at the Warm Springs National Fish Hatchery observed returning adult spring Chinook infected with C. shasta. Additional studies found that both juvenile and adult Deschutes River Chinook were dying prematurely, with C. shasta the suspected cause. And a recent study in the lower Deschutes River demonstrated unusually high levels of C. shasta spores in the water, as well as high levels of C. shasta-related mortality in caged spring Chinook juveniles. Disturbingly, in a sampling site located near Oak Springs Hatchery (located just downstream from Maupin) as many as 87% of caged juvenile Chinook were infected with C. shasta after being exposed to Deschutes River water for 72 hours.

Why Now?

            Various explanations have been offered for the increased presence of C. shasta in the lower river, including increases in water temperature due to climate change. However, DRA believes there is a more fundamental explanation for the marked increase in the C. shasta parasite documented these last few years—an explanation we have not yet seen in discussions around the topic.

Based on available information and data, it appears that the increase in C. shasta may be directly related to operations at the Selective Water Withdrawal (SWW) tower above Round Butte Dam. Since SWW operations began in late 2009, water quality on the lower Deschutes has declined—largely due to the warmer and nutrient-rich surface water from Lake Billy Chinook that is being passed downstream into the lower river. This abrupt change in water quality has also changed the macroinvertebrate community below the Pelton Round Butte project. This has included significant increases in non-insect taxa, including in the presence of Manayunkia speciosa—the polychaete worm that serves as the intermediate host for the C. shasta parasite. While pre-tower sampling in the lower Deschutes did not collect any M. speciosa, post-tower studies in the same locations have collected as many as several thousand M. speciosa individuals per square meter of stream bottom. Similarly, DRA post-tower sampling efforts have collected as many as 8,285 M. speciosa per square meter at Dizney Riffle.

This dramatic increase in M. speciosa is likely a significant factor, if not the driving factor, in the new and increased prevalence of the C. shasta parasite, and the subsequent harm that is resulting to the Deschutes River spring Chinook population. This hypothesis is supported by CTWS data showing a dramatic increase, since 2010, in the percentage of adult spring Chinook that are being counted at Warm Springs National Fish Hatchery and passed upstream, but then dying before they are able to spawn. The chart below reflects data collected on wild spring Chinook in the Warm Springs River from 1977-2016. The chart shows the number of wild fish counted at Warm Springs National Fish Hatchery, divided by the number of Chinook redds counted in spawning ground counts later in the year. (“fish per redd”). A larger number of fish per redd means that more fish died after they were counted at the hatchery and released upstream to spawn naturally, but before those fish were able to spawn.

Fish per redd in WSR basin, 1977 – 2016. From Confederated Tribes of the Warm Springs Reservation of Oregon Natural Production Monitoring Progress Report, January 1, 2015 to December 31, 2016. BPA Project # 2008-311-00, BPA contracts #: 64276, 69558, 73078. Authors: Graham Boostrom and Cyndi Baker.

As you can see, the average number of “fish per redd” in the Warm Springs River jumped from 4.0 from 1977-2009, to 13.1 from 2010-2016. (Further, an astounding 19 adult spring chinook were required to result in one redd in 2016, and 24 adults were required in 2017). In other words, there has been a marked increase in pre-spawning mortality since 2010, which coincides with the commencement of SWW operations in late 2009. These pre-spawning deaths could very well be attributable to Chinook adults being infected by C. shasta on their trip up the Deschutes mainstem.

In sum: The increased presence of C. shasta in the Deschutes River is likely due in significant part to marked increases in the parasite’s intermediate host in the lower river, which in turn is likely due to changes in water quality resulting from SWW operations. And the C. shasta parasite is having a very real impact on spring Chinook salmon in the Deschutes River: it is clearly killing juveniles, and is very likely infecting and killing pre-spawning adults as well.

Deschutes River Spring Chinook Need Help

            More information is needed on C. shasta’s present impacts on Chinook salmon in the Deschutes basin. And it is imperative that basin stakeholders take a hard look at the role of SWW operations in the rise of this fish-killing parasite. C. shasta is not just impacting the threatened wild population of Deschutes River spring Chinook: it is likely playing a role in the extremely low numbers of spring Chinook returning to the Pelton Round Butte Project as part of fish reintroduction efforts there. We call on the agencies responsible for the management of this wild run of spring Chinook to acknowledge these impacts, study the situation, and take aggressive action to stop the loss of these fish before it’s too late. The present decline in wild spring Chinook numbers would predict an extinction event unless such aggressive action is taken. It is time to stop blaming ocean conditions and climate change for this problem, and acknowledge that there are immediate actions we can take that would likely reverse the decline of this treasured wild run.

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

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Read a New Report on How Pelton Round Butte Operations are Impacting Small Businesses in Maupin

On Thursday, April 5, the Oregon Business Journal published a detailed report on the impact of Selective Water Withdrawal operations on the community of Maupin. Since SWW operations began, businesses in Maupin have been severely impacted by the changes in lower Deschutes River water quality, new proliferations of nuisance algae, and subsequent impacts to aquatic insects, fish, and other wildlife.

Read the full article here.

One point to correct from the article: Ceratonova Shasta, described in the article as a small worm, is actually a microscopic parasite that has been shown to cause up to 95% mortality in infected spring Chinook juveniles. The intermediate host for that parasite, a polychaete worm called Manayunkia speciosa, was rarely collected in the lower river before SWW operations began. Unfortunately, in post-SWW samples it is quite abundant, with collections showing up to 4,000 of these polychaetes per square meter.

As the Oregon Business article demonstrates, the ecological changes occurring in the lower Deschutes are having a concrete, negative impact on the community of Maupin, and on businesses throughout central Oregon that rely on a a clean, healthy lower Deschutes River.

Click below to watch the DRA’s recent documentary film, A River Worth Fighting For, that touches on many of these same issues.


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.


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

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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.


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

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