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NW Fishletter #380, April 2, 2018

[9] Deschutes Water-Quality Lawsuit Against PGE Goes Forward; Tribe Joins Request For Dismissal

After failing to convince U.S. District Judge Michael Simon last year to dismiss a lawsuit brought by the Deschutes River Alliance, Portland General Electric is again seeking dismissal of the case alleging Clean Water Act violations, this time with tribal support.

The suit--which has been on hold while DRA and PGE attempted to mediate a settlement--is now back on the court's calendar, set for July 17 oral arguments on a motion for summary judgment.

In Deschutes River Alliance v. Portland General Electric [16-1644], DRA claims the utility is violating its water-quality certification for its Pelton Round Butte Hydroelectric Project, which includes three dams and a 273-foot selective water withdrawal tower, built in 2010 to aid fish passage. The group claims that since the tower was constructed, PGE's monitoring reports show the company has routinely violated clean-water requirements for pH, temperature and dissolved oxygen.

Last March, Simon denied PGE's first attempt to dismiss the lawsuit, saying that under the Clean Water Act, citizens may sue to force compliance with clean-water requirements. PGE had argued that only FERC had authority to enforce water-quality certification after the license had been issued. PGE sought a review by the 9th U.S. Circuit Court of Appeals, but the court denied its request.

Now, PGE and the Confederated Tribes of the Warm Springs Reservation of Oregon are both asking the court to dismiss the case based on the tribe's sovereign immunity, and the availability of another avenue to resolve the issue, outside the courts. PGE and the Warm Springs co-own the project, and jointly applied for and received a new 50-year license from FERC to operate the dams. Both parties filed motions on March 21 arguing that a special process for resolving disputes--including water-quality issues--is already in place through a fish committee established when FERC relicensed the dams in 2005.

Filing in this case as a friend of the court, the tribe claims it has sovereign immunity, "meaning that it cannot be compelled to join this action absent a valid waiver or Congressional abrogation of the Tribe's sovereign immunity," its motion states. Yet, because the tribe has substantial interests in the outcome, the case cannot proceed "in equity and good conscience" and should be dismissed, it says.

It also says a judgment against PGE could trigger re-initiation of ESA consultations with federal agencies, with the possible risk that the project's incidental take permit could be terminated.

The tribe's motion says a fish-passage plan to restore runs above the dams is a key feature of re-licensing. The process included a settlement agreement with several federal, state and tribal agencies, along with environmental groups including Trout Unlimited, American Rivers, Oregon Trout and the Native Fish Society, which are all represented in the fish committee.

The Warm Springs noted the settlement agreement was complex, with several "interrelated and delicately balanced components" and that "each element is essential to successful implementation." The tribe, its motion states, recognizes a healthy fishery and water quality are "inextricably intertwined."

PGE's motion agrees with the Warm Springs, stating that a major problem with the lawsuit is that DRA is seeking liability against PGE alone, when the tribe co-owns the withdrawal tower and the hydro project.

"In determining whether the case should proceed without the tribe, the court looks to a number of factors, including whether an alternative form exists to resolve these issues in a manner that would not prejudice the tribe," its motion states.

The fish committee, set up under the FERC license, has authority to hear and resolve issues raised in the lawsuit, or, if unresolved, bring the problem to FERC, the utility argues. "While DRA is not a member, it may present its concerns to DEQ and the Fish Committee, and may petition FERC to enforce DEQ water quality certification conditions," it says.

Meanwhile, DRA is seeking a partial summary judgment determining PGE is liable under the federal Clean Water Act.

In its motion filed March 5, DRA says that before the water withdrawal tower was built, cleaner and colder water was drawn from near the bottom of Lake Billy Chinook, and released below Round Butte Dam.

Almost immediately after construction of the tower--which draws water from the surface and from near the bottom of the reservoir--Deschutes River users began to notice changes in the lower river, their motions said, including "impacts to water color and odor, rampant proliferations of nuisance algae on the river's rocks, significant changes in aquatic insect populations, increased occurrences of fish diseases, and declines in bird populations."

The changes have had negative impacts on recreational experiences and the local business economy, the plaintiffs allege. -K.C. Mehaffey

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NW Fishletter is produced by Energy NewsData.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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