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NW Fishletter #381, May 7, 2018

[12] Judge To Hear Dismissal Requests, New Motions Filed In Lawsuit Against PGE

A U.S. District Court judge in Portland will hear oral arguments May 9 on motions by Portland General Electric and the Confederated Tribes of the Warm Springs Reservation of Oregon to dismiss a lawsuit filed in 2016 by Deschutes River Alliance. The lawsuit, Deschutes River Alliance v. Portland General Electric Company, claims PGE has routinely exceeded clean water limits for pH, temperature and dissolved oxygen at its Pelton Round Butte hydroelectric project.

The Deschutes River Alliance is seeking a partial summary judgment, while PGE and the Warm Springs have asked for a dismissal, arguing that the Warm Springs, as co-owners of the project, have sovereign immunity and were not named in the suit; and that the matter can be resolved by a special FERC fish committee already set up under its FERC license.

In an April 4 response to the dismissal requests, DRA argues that, while the tribe is a co-owner of the project, it does not have to be named as a defendant because its interests will be adequately represented by PGE.

The Alliance also argues that if the tribe must join the case, the court could take that action "as the Tribe does not enjoy sovereign immunity from enforcement under the Clean Water Act."

And even if the tribe should be a party in the case but cannot be required to join it, DRA says, the court should not dismiss the case "in equity and good conscience," as dismissal would undermine the purpose of the Clean Water Act, and DRA would not have an adequate remedy through the FERC fish committee.

Meanwhile, both parties have also asked for a summary judgment based on agreed facts in the case. DRA says that before a water withdrawal tower was built, cleaner and colder water was drawn from near the bottom of Lake Billy Chinook and released below the Round Butte Dam. The water withdrawal system mixes surface water with water from the depths of the reservoir, which has caused the water quality issues downstream, their motion claims.

In a cross-motion request for their own request for summary judgment filed on April 27, PGE says that operations are consistent with certification from the Oregon Department of Environmental Quality, and that DRA misinterprets individual water quality objectives that are sometimes not met downstream of the project as violations.

The motion says that by blaming the water withdrawal system, the Alliance ignores fish passage requirements and the certification's objectives to adaptively manage the system to consider effects on all water quality parameters combined with fish passage needs. Before the tower was built, the project was a complete barrier to upstream and downstream fish migration. -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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