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NW Fishletter #367, March 6, 2017

[5] State or FERC Jurisdiction at Issue in Pelton Round Butte Federal Case

Do citizens have the right to sue over alleged violations of the Clean Water Act or is their lawful recourse petitioning FERC?

This is the question attorneys for Portland General Electric, the Deschutes River Alliance and the states of Washington and Oregon debated in U.S. District Judge Michael Simon's courtroom Feb. 3.

The states' attorneys general, representing the Washington Department of Ecology and Oregon Department of Environmental Quality, joined the Deschutes River Alliance as amici parties inDRA v. PGE [16-1644].

The states said in their joint filing they were not taking a position on the substance of the alliance's claims against PGE.

They said, rather, the interest of states is to maintain state "authority to protect water quality as expressly provided in the federal Clean Water Act citizen suit provision."

The motion before Simon is whether to dismiss the case, as the defendants have requested, on grounds that FERC has jurisdiction, rather than citizens using the courts to enforce water-quality standards.

The alliance contends PGE is violating the Clean Water Act by operating a selective water-withdrawal system at the Pelton Round Butte complex of dams on the Deschutes River in central Oregon.

Designed as part of the fish-passage system, the water-withdrawal mechanism is warming a 100-mile stretch of the river below the dams and harming the riverine environment there, the alliance says.

"But something much larger than water temperature in a mid-sized river in southern [sic] Oregon was at stake," commented a Courthouse News story in its coverage of the Feb. 3 oral arguments.

A citizen lawsuit to enforce environmental laws has been one of the conservation movement's most effective tools, the new agency wrote.

The Deschutes River Alliance, PGE said, should have petitioned FERC, which licensed and conditioned the company's permit to operate the Pelton Round Butte Hydroelectric Project.

The utility argued the Clean Water Act doesn't allow people to sue over enforcement of the terms of its certification under Section 401 of the act.

A PGE brief responding to the states said Congress did not provide a cause of action under the CWA to enforce Section 401 certification except through the terms and conditions of the FERC license.

In its filings, DRA countered that FERC has never actually enforced a 401-certification condition and has the discretion to ignore petitions requesting enforcement.

Simon did not indicate when he would make a decision. -Laura Berg

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