A Nov. 6 filing by an environmental group reiterated reasons the 9th U.S. Circuit Court of Appeals should overturn a lower court ruling that found no water quality certification violations by the operators of a water withdrawal tower below the Pelton Round Butte hydroelectric project. This ruling, said Deschutes River Alliance, was made even though individual water quality standards have been exceeded numerous times.
The alliance appealed U.S. District Judge Michael Simon's August 2018 ruling in Deschutes River Alliance v. Portland General Electric Company et al. [16-1644], that PGE and the Confederated Tribes of the Warm Springs Reservation are not violating terms of their water quality certification while working to achieve standards required in both the certification and a water quality and monitoring plan. PGE and the tribe jointly operate the project and are defendants-appellees and cross-appellants in the case.
The alliance's appeal [18-35867] seeks to overturn Simon's ruling. Cross-appeals by PGE and the tribe [18-35932, 18-35933] dispute Simon's decision in the case that the tribe lacks sovereign immunity and can be compelled to join the case as a defendant.
In its reply brief, the alliance seeks a return of the case to the District Court for an injunction requiring PGE and the tribe to operate Pelton Round Butte in compliance with Oregon's water quality standards for the Deschutes River. The nonprofit group claims they showed hundreds of instances when standards were violated over the past decade, with high pH, high temperature and low dissolved oxygen discharges.
Deschutes River Alliance "is acutely concerned that in the absence of judicial intervention, the State of Oregon will stand by while the present incarnation of the Project continues to violate water quality standards, and the lower Deschutes River will reach a point of no return," the filing stated.
Regarding the cross-appeals, the alliance argues the lower court correctly ruled the tribe can be joined as a defendant in the case, and does not enjoy immunity from a citizen lawsuit under the Clean Water Act.
However, the alliance claims, the tribe is not a necessary party to the case, as it has already assigned responsibility and authority to PGE to operate the Pelton Round Butte project.
The case is being scheduled for oral arguments in Portland, but no date has been set.