Deschutes River Alliance Press Release 3/28/17
In Clean Water Act Lawsuit, Court Denies Portland General Electric’s Motion to Dismiss. Allows Suit by Deschutes River Alliance to Proceed
Contact: Jonah Sandford | firstname.lastname@example.org | 971-219-4677 Doug Quirke | email@example.com | (541) 686-3027
On Monday morning, Federal District Court Judge Michael Simon rejected Portland General Electric’s motion to dismiss a Clean Water Act lawsuit brought by the Deschutes River Alliance. DRA sued PGE last summer to enforce state water quality requirements at the corporation’s Pelton Round Butte Hydroelectric Project. In response, PGE argued that citizens have no right to enforce the Clean Water Act against hydroelectric projects.
“Judge Simon’s ruling is a great victory not just for the Deschutes River, but for clean water advocates across the country,” said Jonah Sandford, the Executive Director of the DRA. “Clean Water Act citizen suits are a critical tool for protecting water quality, and this decision affirms that the DRA and other advocates have the right to use this tool on rivers impacted by hydroelectric projects. We’re eager to move on to address the merits of the case.”
Judge Simon rejected each of PGE’s arguments, finding that PGE’s interpretation of the Clean Water Act’s citizen suit provision “rewrites the statute.” According to Judge Simon, allowing a valid citizen suit in a situation such as this “is the only construction that is consistent with the text of the statute and the purpose and policy of the CWA…”
As essential background: In 2010, PGE began operating a “Selective Water Withdrawal” tower in the reservoir above Round Butte Dam to generate surface currents to aid migrating salmonids and fish reintroduction efforts in tributaries above the Dam. But tower operations have led to over 1,000 violations of water quality requirements for temperature, pH, and dissolved oxygen at the Pelton Round Butte Complex since 2010, according to Doug Quirke, director of the Oregon Clean Water Action Project and co-counsel to DRA on the case
These violations, in turn, have induced severe ecological changes in the lower Deschutes, according to DRA’s on-the-river research -- including rampant proliferation of nuisance algae, changes in insect hatch timing and abundance, and a decline in insectivorous species like birds and bats.
“But instead of complying with its clear requirements,” said Dan Galpern, a Eugene-based environmental attorney who argued the motion on behalf of DRA, “PGE sought to redefine them as mere aspirational formalities, unenforceable either by the State or by citizens intent on ensuring the ecological integrity of the river. The Court didn’t buy it because Judge Simon read the plain language of the law.” DRA hopes to soon present Judge Simon with the merits of its case, so as to minimize the duration and severity of PGE’s damage to the lower Deschutes River.