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NW Fishletter #373, September 5, 2017

[6] 9th Circuit Denies PGE's Request to Appeal CWA Decision

Portland General Electric's attempts to have federal courts dismiss a lawsuit over its Deschutes River hydroelectric projects appear to have ended, at least for now.

Without comment, on Aug. 14 the 9th U.S. Circuit Court of Appeals denied PGE's request for an appeal.

Earlier this year, U.S. District Judge Michael Simon affirmed the right of the citizen's group Deschutes River Alliance to sue PGE under the Clean Water Act. PGE appealed Simon's decision.

The company argued that only FERC--not citizen groups--could enforce Section 401 certifications at licensed hydroelectric projects.

In Deschutes River Alliance v. Portland General Electric [16-1644], the conservation group seeks to enforce water-quality requirements at the utility's Pelton Round Butte complex of dams on the Deschutes River in central Oregon.

PGE spokeswoman Laurel Schmidt told NW Fishletter in an email, "The 9th's decision not to hear our motion only addresses a narrow procedural and jurisdictional question--not the substance of the allegations in the original lawsuit."

"We are always open and hopeful for a global settlement and are continuing to explore such opportunities," Schmidt said.

After the decision, the Deschutes River Alliance's website said, "[W]e are eager to present the merits of our case to Judge Simon."

However, in an email to Fishletter, DRA Executive Director Jonah Sandford added that its case before Simon in the U.S. District Court for the District of Oregon would proceed if negotiations with PGE were no longer productive.

The two parties have been in negotiations since June over the alleged CWA violations related to a select water-withdrawal facility above Round Butte Dam. The suit is stayed through Aug. 29 to allow parties time to discuss a potential settlement.

Also, in the 9th Circuit's Aug. 14 order, the judges granted a motion by the Confederated Tribes of the Warm Springs Reservation of Oregon to appear as amicus curiae in the case. The tribe is co-owner with PGE of the Pelton Round Butte project. -L. B.

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