Deschutes River Alliance Press Release 3/28/17

March 29, 2017

 

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 | jonah@deschutesriveralliance.org | 971-219-4677
Doug Quirke | doug@ocwap.org | (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.

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