NW Fishletter #369, May 1, 2017
  1. So Far Chinook a Low-Show in Columbia River, Poor Showings Elsewhere
  2. Hells Canyon Relicensing Delayed at Governors' Request
  3. Combating Invasive Mussels Gets Boost From Corps
  4. Agencies and Tribe Recommend Operational Changes at Montana Dams
  5. Federal Judge Directs Oregon to Remedy High Temperatures in Rivers
  6. Tribes Applaud Sea Lion Predation Bill; Yakama Man Monitoring Sea Lions Dies
  7. Opinion: Predatory Sea Lions Are Detrimental to Columbia River Fish Runs
  8. Council Briefed on Likely Broader Implications of Latest BiOp Spill Ruling
  9. Clean Water Act Settlement Reached in Columbia River Pollution Case
  10. Wild Fish Advocates Lose in 9th Circuit Elwha River Case
  11. PGE Files to Appeal District Court Ruling in Deschutes River Case

[1] So Far Chinook a Low-Show in Columbia River, Poor Showings Elsewhere

Only 3,347 spring Chinook have crossed Bonneville Dam as of the end of April--about 2 percent of the predicted run size of 160,400 upriver spring Chinook.

By May 7, about half of the spring Chinook have usually passed the dam on their way to upriver spawning locations, including the Little White Salmon, Klickitat, Yakima, Snake, Wenatchee, Entiat and Methow rivers.

But Chinook may be holed up in the lower Columbia. Test fishing indicates a large Chinook presence in the estuary, but the water is higher, colder and more turbid than usual, likely delaying upstream migration.

Warmer temperatures predicted for early May may help. A status report from interagency biologists of the Columbia River Technical Advisory Committee is expected in May.

Meanwhile, many salmon returns along the West Coast from Northern California to Puget Sound are poor to very poor. The Klamath River is particularly hard hit this year, with only a Chinook run size of some 12,000 fish predicted.

Numerous Puget Sound Chinook and coastal Washington coho stocks are also in trouble.

The reduced returns are partly a result of poor ocean conditions brought about by the recent El Niño weather pattern. The warmer El Niño waters meant different but less-nutritious food sources were available to these fish when they were juveniles.

This year, most ocean and in-river fishing seasons are very constrained and in some cases closed. -Laura Berg

[2] Hells Canyon Relicensing Delayed at Governors' Request

Idaho Power has agreed to a request from the governors of Oregon and Idaho that will give the states more time to resolve a dispute over reintroducing salmon in the middle and upper Snake River basins as a condition of a new FERC license for the 1,167-MW Hells Canyon Complex.

Because Hells Canyon's three dams lie on the Oregon/Idaho border, each state's water-quality agency, both housed in their respective Departments of Environmental Quality (the "DEQs"), prepared draft water-quality certifications that FERC must incorporate into the license.

In December, both state DEQs prepared drafts with similar conditions for temperature, dissolved oxygen and other criteria. Oregon's draft requires fish-passage facilities at the dams and reintroduction of fish to the river above them, while Idaho's draft expressly forbids reintroduction.

Oregon Gov. Kate Brown and Idaho Gov. C. L. "Butch" Otter met recently in Washington, D.C., to discuss the relicensing, their respective state authorities under the Clean Water Act, and the issues "that preclude the states from issuing complementary" certifications on reintroduction, according to a letter the governors sent to Idaho Power on April 11.

The governors asked the utility to withdraw and resubmit its certification applications at both agencies, thereby restarting the one-year clock, and giving the states time to discuss a solution.

Absent the action, the states would have been required to adopt final certifications by July 29, 2017. The governors' plan allows the agencies to withdraw their drafts to allow time for the discussions, which the governors said would commence "immediately." They said they expect the talks to conclude by Sept. 1, 2017. Idaho filed the requisite documents with the Oregon and Idaho DEQs April 14.

Brownlee Dam, one of three in Hells Canyon, at 60 percent completion in 1957. Credit: WaterArchives

Jon Hanian, press secretary to Otter, told NW Fishletter via email that the governors met Feb. 26 during the National Governors Association meeting in Washington, D.C., where the focus was the water-quality certifications.

Hanian said the discussions with "our counterparts" from Oregon are ongoing and that besides the governor, Idaho's delegation includes chief of staff David Hensley, legal counsel Cally Younger and Idaho Office of Species Conservation legal counsel Sam Easton. He declined to give any details about the substance of the talks.

A spokesperson for the Oregon governor's office did not reply by deadline to a similar inquiry.

Idaho Power, which has already spent $250 million on the relicensing, estimates it will spend an average of $30 million annually pending FERC's decision on the license, which is not expected before 2021. Idaho Power first applied for a new Hells Canyon license in 2003.

Asked if the utility was involved in orchestrating the governors' letter, Idaho Power spokesman Brad Bowlin said "we were involved in encouraging the states to address this issue and try to come up with a [certification] that we can all work with. At this point it is up to the states."

As to the utility's position on reintroduction, he said only that "there are a lot of potential additional costs associated with reintroduction as proposed." But in its February 10-K filing with the U.S. Securities and Exchange Commission, the utility did not stress any concerns over the costs of prospective passage and reintroduction measures in the license, but rather costs associated with prospective temperature-control provisions.

It is not unusual for water-quality certification applications to be withdrawn and resubmitted. Licensees frequently do so in deference to states that have only a year to complete often complex studies and consultations.

The Hells Canyon case is an outlier, however, as the certification applications have been withdrawn and resubmitted over a dozen times due to a series of controversies, most over water temperature and upstream watershed-improvement measures. This is one of the main reasons the relicense proceeding for Hells Canyon, the nation's fourth-largest privately-owned hydroelectric project, has been pending at FERC for nearly 14 years, during which time interim settlement operations have been in place.

The governors' letter came shortly after the DEQs received over a dozen comments on their December 2016 draft certifications.

It also came as Idaho Power is seeking rehearing of FERC's order that it is premature to consider a declaratory ruling that the Federal Power Act preempts an Oregon law giving that state authority to require fish passage, and especially FERC's assertion that states can do so under the Clean Water Act. -Ben Tansey

[3] Combating Invasive Mussels Gets Boost From Corps

The U.S. Army Corps of Engineers is helping fund watercraft inspections to block the introduction of destructive quagga and zebra mussels into the Columbia River watershed.

The Corps and the Pacific States Marine Fisheries Commission (PSMFC) signed an agreement April 5 allowing the Commission to fund a four-state effort to prevent the non-native invasive mussels from spreading to the basin.

Regional leaders in the effort waited for several months for the Corps to approve the cost-share agreement. A March 9 announcement by the Walla Walla District said Corps' headquarters had given a green light to the federal cost-share.

Under the arrangement, the Corps and PSMFC--representing the states of Idaho, Montana, Oregon and Washington--will spend an estimated $7.4 million on the prevention effort.

The funding focuses on launching a score of new watercraft inspection stations and supporting existing stations, Corps spokesman for the Walla Walla District Bruce Henrickson told NW Fishletter in an email.

In recent years, the four states combined have spent about $3 million annually from other revenue sources.

The Corps funding comes just in time for the boating season, which starts in early March in the Northwest. The most likely source of contamination is watercraft returning from infected waters.

Aggressive prevention is urgently needed since Montana confirmed the presence of the invasive mussels last November in the Missouri River watershed, only a mountain ridge away from Columbia River Basin waters.

The new watercraft inspection stations include 14 in and around Montana's Tiber and Canyon Ferry reservoirs, where the invasive mussels were detected in November for the first time.

Montana's Flathead Lake in the Columbia River drainage. Credit: University of Montana

British Columbia announced in March that it had expanded funding by $3 million to keep invasive mussels out of the province's water bodies, including the Columbia River.

The total B.C. provincial funding for the prevention program is now $4.5 million annually with contributions coming from BC Hydro, Columbia Power, Fortis BC and Columbia Basin Trust.

Alberta, which borders B.C.'s eastern border, also maintains a mussel deterrence program.

Earlier this year, the Montana Mussel Response Team developed a two-year, $10.2-million strategy to combat the threat of invasive mussels. Although amended, the proposed funding has now passed the Montana Senate and House of Representatives.

As of 2015, when "Advancing a Regional Defense Against Dreissenids in the Pacific Northwest" was published, about $13 million was being spent annually in the region to prevent the establishment of these aquatic invasives. The region includes British Columbia and Alberta.

However, should the mussels become established in Northwest waters, the cost to the region would be about $500 million annually, according to both the study and the Corps.

Corps documents describe a direct threat to hydropower, navigation, and fish and wildlife mitigation from the non-native mussels, known as dreissenids, after their genus Dreissena. All submerged components of the basin's hydro facilities could be affected, including structural improvements such as fish screens and bypass systems, made over the past 25 years to pass salmon, steelhead and lamprey through dams.

In a related development, a study published in February concluded current efforts to detect invasive mussels in the Columbia Basin are not adequate. If the species were in the basin's waters, they wouldn't likely be detected at low densities, which is when measures to control their spread are most effective.

The study examined detection work in three Columbia River reservoirs--Bonneville, John Day, and Priest Rapids--and one Snake River reservoir, Ice Harbor.

Among other recommendations, the study suggested the development of alternative detection technologies, such as optical imaging and environmental DNA analysis, to speed up discovery time and detection effectiveness.

Scientists at the University of Montana are now using environmental DNA, or eDNA, to increase early detection capabilities to control the spread of invasive mussels in the state. eDNA examines DNA left behind by animals as they move through their environs to indirectly detect their presence. -Laura Berg

[4] Agencies and Tribe Recommend Operational Changes at Montana Dams

Operational changes at Libby and Hungry Horse dams would increase their value to the region, according to a report released last month by Montana Fish, Wildlife & Parks and the Northwest Power and Conservation Council, in consultation with the Confederated Salish and Kootenai Tribes.

The report, "Montana Operations at Libby and Hungry Horse Dams," describes the dams' current operations and details recommendations for the two hydro projects.

Located in northwestern Montana, Libby Dam stores water that runs through 17 downstream dams, while the Hungry Horse Dam stores water for 20 downstream dams (including ones in Canada). Together the two Montana projects hold 40 percent of U.S. water storage in the Columbia River Basin.

Hungry Horse coordinates its operations with Seéliš Ksanka Ql'ispé Dam (formerly Kerr Dam), located at the mouth of Flathead Lake and owned by the Confederated Salish and Kootenai Tribes.

Future operational changes at these dams--and at 14 other federal multipurpose dams in the Columbia Basin--could result from the pending new FCRPS BiOp and Environmental Impact Statement and from revisions to the U.S.-Canada Columbia River Treaty.

"Upcoming negotiations will likely expand on previous efforts to minimize harm to the ecosystem while ensuring the benefits from the dams," the report says.

Sturgeon benefit from a pulse of water flow in spring. Credit: T. Grover/NWPCC

Since the 1990s, operational adjustments at the dams have attempted, with some success, to reduce impacts on fish and the ecosystem. However, the paper said, more needs to be done to meet ESA and Northwest Power Act obligations.

"Dam operations continue to change the magnitude and seasonality of the hydraulic cycles and so fail to achieve full ecological functionality, particularly associated with the riparian community," it said.

Improvements include adjustments in VarQ, or variable discharge, which allows more water to stay in reservoirs in late winter than under standard flood-risk management.

First implemented in the early 2000s at Libby and Hungry Horse dams, VarQ creates more natural conditions for ESA-listed bull trout, ESA-listed Kootenai white sturgeon and other native fishes without compromising flood-management requirements.

Lower winter flows are recommended to encourage survival of riparian plant communities established during summer operations, particularly during high-water years, but subsequently destroyed by high-winter flows. Riparian vegetation supports both aquatic and terrestrial species.

Improving reservoir refill during dry years would also help meet reservoir storage criteria and biological constraints in the Confederated Salish and Kootenai Tribes-Montana Water Compact.

Sliding-scale or modified rule curves similar to VarQ should be considered at other reservoirs in the Columbia Basin, the paper said.

Montana also recommends assessing potential modifications to current flood-risk operations "including evaluating all cost-effective actions to manage high flow events especially in the lower basin, including reconnecting floodplains." This is proposed in the 2013 U.S. Entity's Regional Recommendation for modernizing the Columbia River Treaty.

"Any changes in flood control management arising from this process could reduce the current flood management demands on Libby and Hungry Horse dams, with corresponding benefits to headwater reservoir operations and downriver ecosystems," the paper said. -Laura Berg

[5] Federal Judge Directs Oregon to Remedy High Temperatures in Rivers

The EPA and Oregon Department of Environmental Quality failed to protect salmon species from high temperatures in Oregon rivers, a federal court ruled April 11.

District Judge Marco Hernandez, with the U.S. District Court for the District of Oregon, agreed with Northwest Environmental Advocates that the Oregon Department of Environmental Quality's temperature-remediation plans specified total maximum daily loads (TMDLs) that allowed high water temperatures harmful to salmon and steelhead.

Hernandez also affirmed that the EPA must comply with the Endangered Species Act in approving the state's plans.

Although Portland-based NWEA has been battling over Oregon and Columbia River water quality for some three decades, this case--Northwest Environmental Advocates v. U.S. Environmental Protection Agency [12-01751]--dates from 2012.

The Oregon temperature TMDLs currently at issue were based on a rule called "natural condition criteria."

An earlier court invalidated that rule in 2012, even though National Marine Fisheries Service and U.S. Fish and Wildlife Service had agreed with EPA's conclusion that "criteria based on natural conditions" were "fully protective of salmonid uses, even if the natural conditions are higher than the numeric criteria for some waterbodies, because river temperatures prior to human impacts clearly supported healthy salmonid populations."

Oregon DEQ used the rule to issue temperature-cleanup plans, allowing the agency to change water-quality standards for temperature without federal agency review, contrary to Clean Water Act requirements, according to the Hernandez opinion.

"In some instances," an April 13 NWEA news release said, "Oregon raised allowable temperatures to levels lethal to salmon within seconds."

Hernandez' decision largely adopts the recommendations of U.S. Magistrate Judge John Acosta's October 2016 ruling.

After the 2016 findings, NWEA Executive Director Nina Bell said in a statement, "This decision puts the lie to Oregon's claim that it is trying to protect salmon and steelhead."

She added, "The big reveal is that the emperor has no clothes. Oregon stands naked with nothing to show for itself but trying to justify giving cold water species on the brink of extinction a bath in hot water."

The state will have to redo its TMDLs, according to Bell, although the timeline is unclear. The judge didn't set a schedule.

No one from Oregon DEQ responded to NW Fishletter.

The court gave EPA and Oregon DEQ two years to submit a new TMDL for mercury in the Willamette River basin. -Laura Berg

[6] Tribes Applaud Sea Lion Predation Bill; Yakama Man Monitoring Sea Lions Dies

Federal legislation introduced in early April by Reps. Jaime Herrera Beutler (R-Wash.) and Kurt Schrader (D-Ore.) would give tribes authority to remove a limited number of predatory sea lions from the Columbia River.

In separate April 10 news statements, the Yakama Nation and the Columbia River Inter-Tribal Fish Commission applauded the bipartisan endeavor, saying the loss of spring Chinook to sea lion predation in the Columbia River estuary and at Willamette Falls constitutes an emergency.

"Easily 20 percent of the spring Chinook endeavoring to return to their spawning grounds are being taken by sea lions," the Yakama news release said.

The U.S. Army Corps of Engineers estimated that in 2016, 5.8 percent of the adult spring Chinook run was lost to sea lions in a quarter-mile area near Bonneville Dam.

Many more spring Chinook--NOAA Fisheries said up to 45 percent in 2014--were taken by these predators in the Columbia estuary, a 145-river-mile stretch between the river mouth and Bonneville Dam.

The proposed Endangered Salmon and Fisheries Predation Prevention Act would amend Section 120 of the Marine Mammal Protection Act to allow the Warm Springs, Umatilla, Yakama and Nez Perce tribes access to the same authorities currently available only to states, according to the CRITFC news release.

On March 12, two days after the news statements, CRITFC announced that Yakama tribal member Greg George perished in a boating accident related to tribal efforts to reduce sea lion predation in the river.

George is from a well-known fishing family and was part of a four-person crew counting sea lion abundance in the lower Columbia River aboard the research vessel CRITFC 3 when it capsized near Multnomah Falls. All were wearing flotation devices.

The other crew members survived and were retrieved from the water by Gresham, Ore., Fire and Rescue. -L. B.

[7] Opinion: Predatory Sea Lions Are Detrimental to Columbia River Fish Runs

Studies by the National Marine Fisheries Service, and corroborated by our biologists and those employed by the states of Oregon and Washington, show that predatory sea lions are having an absolutely detrimental impact on the fish runs that so many in our region depend on.

At least 20 percent of returning spring Chinook runs are being taken by sea lions.

Those who suggest that sea lions eating fish near Bonneville Dam represents a natural phenomenon are not familiar with either the normal habitat of sea lions or of the hard-fought compromises that so many in the Columbia Basin have reached in order to try and have a productive fishery.

While sea lions can survive in freshwater, they are predominantly saltwater mammals. Their home is the Pacific Ocean. Twenty years ago we did not have a problem with large numbers of sea lions swimming 145 miles up the Columbia to Bonneville Dam to gorge themselves on salmon.

This is a learned behavior by a limited number of sea lions that has been taught to others of their species.

The argument that this is natural behavior is also blind to the fact man has changed the Columbia through the construction of dams, through polluting the river, through diversion of massive amounts of water, and through the destruction of thousands of miles of fishery habitat.

We cannot pretend that this is just nature at work, when man has altered the natural balance that might have otherwise made it a fair fight. Now the fish are at too great a disadvantage for the well-intended, but naïve, protectors of sea lions to say that man should butt out of the sea lion versus salmon issue.

All parties involved in the Columbia Basin fish issues have had to compromise. The treaty tribes, who ceded millions of acres that now comprise large segments of Washington, Oregon and Idaho, and who reserved to themselves the right to fish as we have since time immemorial, have had to greatly reduce our fishery so that the species may survive. Commercial and sports fishermen have had to do likewise.

The operators of hydro dams have had to give up power production in order to spill water so that the species may survive.

Agriculture interests, in some of the most fertile lands in the United States, have had to curtail the irrigation of their crops and fruit trees so that sufficient water is left in the tributaries so that the species may survive.

Ratepayers have had to pay millions for fish mitigation.

All have had to sacrifice, and yet certain groups say we should take no actions against sea lions.

We appreciate their wanting to protect sea lions, but where is their interest in protecting salmon and steelhead and those whose lives are so dependent on them?

The lack of understanding regarding the pressures on fishery managers and the insensitivity to our rights is astonishing, particularly when suggesting Indians and others should simply stop fishing.

Managing the salmon and steelhead species in the Columbia is a complicated balancing act, but to recommend that sea lions should be exempt from that balancing act is naïve at best. -Gerry Lewis and Paul Ward

[Lewis chairs the Yakama Nation Fish and Wildlife Committee, and Ward is manager of the Yakama Nation fisheries program.]

[8] Council Briefed on Likely Broader Implications of Latest BiOp Spill Ruling

A recent ruling in the ongoing BiOp litigation will have implications beyond increasing spill in 2018, the Northwest Power and Conservation Council was told at an April 12 briefing.

These include effects on non-listed fish from proposed spill operations and potential financial and operational impacts.

While U.S. District Judge Michael Simon's March 27 ruling ordered more spring spill to help recover ESA-listed fish, it could affect other fish covered by the Columbia Basin Fish and Wildlife Program but not the BiOp or the ruling, according to John Shurts, the Council's general counsel.

Upper Columbia River summer and fall Chinook as well as upper Columbia sockeye, sturgeon, lamprey, resident and other fish species are not protected under the ESA, but are covered by the Fish and Wildlife Program.

The program is not only broader in terms of species affected by the hydro system, Shurts told NW Fishletter, but also the ultimate objective of the program goes beyond delisting endangered species.

The Council's role in the spill issue, he said, includes examining potential impacts from proposed spill increases on both listed and non-listed fish species in the Columbia Basin.

Spill is used in fisheries management to aid juvenile salmonids migrating downstream past Columbia and Snake river dams on their way to the ocean.

The plaintiffs in the FCRPS litigation, National Wildlife Federation et al. v. National Marine Fisheries Service et al. [01-640], sought more spill in the spring than provided in the 2014 BiOp, and they wanted it to start this spring.

The court ordered increased spill but not until 2018, to provide "sufficient time to consider an appropriate protocol and methodology for spill at each dam, incorporating the most beneficial spill patterns," the March 27 opinion said.

From a fisheries standpoint, the main danger from spill is that it can potentially introduce too much total dissolved gas (TDG) into the river as water plunges down a dam's spillway. Fisheries experts say that when spill levels reach 125-130 percent TDG, fish can be injured or even die.

When water is spilled close to a hatchery intake, as was the case this spring at Dworshak Dam, dissolved gas levels need to be lower because the water in hatchery rearing tanks is shallow and doesn't allow fish to dive deeper to avoid gases, as fish do in the river.

Even though good flow and passage conditions for listed salmonids are usually good for non-listed salmonids, that can't be assumed, Shurts said.

As federal agencies design 2018 operations for additional spill, they shouldn't forget about the non-listed salmonid and other fish species, he said.

He and Council Fish and Wildlife Division Director Tony Grover made the point that federal agencies have fish obligations under the program and the Northwest Power Act, as well as under the ESA.

"We may want to communicate that to the federal agencies," the general counsel said.

Grover added that under the regional act, the Council is expected to examine proposals that would require BPA to spend fish and wildlife funds, which may occur as federal agencies develop a spill plan and test for next year.

"We have an obligation to review the proposals to see if they would be good functional expenditures," he said.

Because the F&W program and the independent science panels associated with the program have history and experience with the spill issue, the Council may be called upon to engage the science boards in evaluating the proposed 2018 spill operations.

The Council was also advised there could be financial implications from increased spill and possible impacts to the fish and wildlife budget and program. If that's the case, Shurts said, the Council might want to think about protecting program priorities. -Laura Berg

[9] Clean Water Act Settlement Reached in Columbia River Pollution Case

A settlement between Columbia Riverkeeper and a manufacturer of seamless metal tubes for the nuclear and aerospace industries over Columbia River pollution was announced April 17.

The U.S. District Court for the Eastern District of Washington entered the agreement settling a Clean Water Act case that began in 2015 when Sandvik Special Metals acknowledged it had discharged more ammonia and fluoride into the Columbia River than its wastewater permit allowed.

In the consent decree, the company is required to update its water-pollution control technology and fund several water-quality improvement projects in the Columbia River and eastern Washington tributaries.

The company will pay $650,000 to Futurewise, Friends of Toppenish Creek and the Center for Environmental Law and Policy. The three nonprofit groups are all based in Washington.

"Sandvik is pleased that Washington state recently approved the company's proposed upgrades to address self-reported permit exceedances," said company President Orjan Blom in an April 17 statement, "and is happy that this settlement with Columbia Riverkeeper will provide funds for organizations working to improve water quality in the Columbia River."

The arrangement closes the case Columbia Riverkeeper v. Sandvik Special Metals LLC [15-05118]. -L. B.

[10] Wild Fish Advocates Lose in 9th Circuit Elwha River Case

The Wild Fish Conservancy failed to overturn a federal decision approving the use of artificial propagation as a means of restoring Elwha River fish populations after dam removal.

In affirming the district court opinion, the 9th U.S. Circuit Court of Appeals determined that the U.S. Department of the Interior and National Marine Fisheries Service did not violate either the National Environmental Policy Act or the Endangered Species Act when sanctioning the hatcheries, as claimed by plaintiffs.

Plaintiffs filed the suit, Wild Fish Conservancy et al. v. National Park Service et al. [12-5109], in 2012 in U.S. District Court for the District of Western Washington.

Joining the WFC in the litigation were Wild Steelhead Coalition, Federation of Flyfishers Steelhead Committee and Conservation Angler.

The April 18 opinion of the three-judge appeals panel gives the thumbs up to the Lower Elwha Klallam Tribe and State of Washington hatchery programs in the Elwha River. Glines Canyon and Elwha dams were taken out of the river in 2014 and 2011, respectively.

The Elwha River emerges from the Olympic Mountains in northwestern Washington and empties into the Strait of Juan de Fuca. -L. B.

[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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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: Laura Berg
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