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NW Fishletter #369, May 1, 2017

[11] PGE Files to Appeal District Court Ruling in Deschutes River Case

Portland General Electric is asking the 9th U.S. Circuit Court of Appeals to overturn a federal-court decision denying the utility's motion to dismiss a lawsuit brought by Deschutes River Alliance.

The utility argues in an April 6 brief that District Judge Michael Simon's March 27 ruling was "the first in the country" to decide whether the Clean Water Act allows citizens to challenge the terms and any conditions of a CWA certification.

"[N]o appellate court has ever had occasion to determine whether Section 401 certifications are enforceable separate and apart from the [FERC] permit or license that incorporates their terms and conditions," the PGE motion to the appeal said.

The filing also asked to postpone any further district-court proceedings in Deschutes River Alliance v. Portland General Electric [16-1644], pending a 9th Circuit decision.

The case was brought by Deschutes River Alliance in August 2016. The central Oregon environmental group alleges the utility's Pelton Round Butte hydroelectric project is degrading water quality in the final 100-mile stretch of the Deschutes before it drains into the Columbia River.

In its motion to dismiss the lawsuit, PGE argued that FERC alone had jurisdiction. Simon disagreed and said CWA unambiguously gave citizens the right to act to stop violations of the water act.

In April, DRA published the "2016 Lower Deschutes River Water Quality Study Results" report, which says conditions harmful to aquatic life--warmer water, higher pH levels and lower levels of dissolved gas--are attributable to a seven-year-old selective water-withdrawal system at Round Butte Dam.

PGE spokesman Stan Sittser said in an email to NW Fishletter that the utility was reviewing the DRA report, but staying focused on its "long-term efforts to enhance water quality and promote healthy fisheries for salmon, steelhead and trout on the Deschutes.

"We're confident, we're in compliance with our license and all applicable environmental standards in our operation of the Pelton Round Butte project," the email said.

The Confederated Tribes of the Warm Springs Reservation, the co-owner of the Pelton Round Butte project, asked to enter the case as an amicus curiae party. The court granted the motion.

The alliance plans to file its response to PGE's motion to appeal soon. -Laura Berg

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