By: Matthias Fostvedt
Imagine you live in a safe, quiet neighborhood full of perfect vegetable gardens, savory barbeques, and puppies that never grow old. Suddenly, a new guy moves in across the street. Immediately, he comes over to your house to introduce himself.
Your new neighbor is very excited to tell you that he just got a driver’s license. Implicit in his shiny new license is a promise to follow the rules of the road, right? Well, your neighbor lives life on the edge – he blows through stop signs to get to work when he’s running late, and parks in the middle of the road when the spot outside of his house is taken.
Logically, you decide to call the police; you’ve seen this type of behavior before, and the police have always ticketed the crazy driver. This time, however, is different. When the police confront your obnoxious neighbor, he argues to the police, “You can’t cite me! The DMV gave me this license, and I only made a promise to them to follow the rules. Sorry guys, if you want to get me in trouble, you’ll have to talk to the DMV.”
The policeman walks back to the squad car confused. Your job is to convince the policeman to ticket the guy, like he always has in the past. The safety of your neighborhood depends on the policeman doing his job.
A nonprofit environmental group known as Deschutes River Alliance found themselves in a similar dilemma of unexpectedly arguing a case of first impression. However, the case was not set in a quiet neighborhood full of perfect vegetable gardens; it was set, instead, on the lower 100 miles of the mighty Deschutes River.
The Lower Deschutes Conflict
In 1962, the Federal Power Commission licensed the Pelton Round Butte Hydroelectric Project on the Lower Deschutes River, authorizing the construction of three dams. The design of the three dams brought both good news and bad news.
The good news was that the dams would release cold, clean water from the bottom of the reservoirs. This water supported proper algae growth in the lower stretches of the river, an essential food source for native aquatic insects. These insects are the foundation of the food chain. They support healthy populations of native trout and birds.
The bad news was that the dams provided inadequate fish passage for anad
romous fish, like migrating salmon and steelhead. In particular, having the powerhouse intake at the bottom of the reservoir created confusing surface currents that prevented the vast majority of downstream-migrating juveniles from finding their way to the fish collection traps at the top of Round Butte Dam. The result? Most juveniles ended up floundering in the reservoir for the rest of their lives.
Luckily for the anadromous fish, the project’s license expired in 2002. To get a new license, something needed to be done about the fish passage crisis.
Portland General Electric (PGE), the majority owner and operator of the project, installed
new infrastructure to fix the problem. They installed a $90 million “selective water withdrawal tower” that would draw a portion of water from the top of the reservoir into the powerhouse intake. This would create normal surface water currents in the reservoir, which act as a magnet for downstream-migrating juveniles. However, this benefit came with a heavy cost.
Releasing water from the top of the reservoir has fundamentally altered the temperature, nutrient content, and pH level of the water in the Lower Deschutes River. Downstream of the dams, this funky
water has produced an explosion of unnatural algae growth, which the native aquatic insects cannot eat. With the aquatic insect population in freefall, the entire ecosystem has suffered. Like dominos, bird populations have plummeted, and trout populations have resorted to eating bottom-feeder snails, which give them a parasite known as the black-spot disease.
FERC Petition v. Citizen Suit
In light of clear violations of the water quality standards established by the Clean Water Act (CWA), Deschutes River Alliance brought a citizen suit against PGE for violating the terms of its CWA Section 401 certification for the Pelton Round Butte Project, issued by the Oregon Department of Environmental Quality. Section 401 requires privately-owned dams with operating licenses from the Federal Energy Regulatory Commission (FERC) to obtain water quality certifications from the state (or states with waters impacted by the project), thereby allowing states to protect the quality of their waters from impacts of federally-licensed projects. The FERC license for the Pelton Round Butte Project incorporates the water quality certification issued by the State of Oregon.
FERC renewed PGE’s license on the Lower Deschutes in 2002. PGE’s operations on the Lower Deschutes, however, have since failed to meet the water quality standards in that license. In short, Deschutes River Alliance’s citizen suit seeks to enforce the terms of the Oregon DEQ-issued water quality certification for the project.
Nonprofit groups have done this before – albeit in a small number of cases. Taking advantage of the small number of decisions, PGE decided to turn the case into a matter of first impression. They argued that previous courts had skirted over a fundamental aspect of Section 401 – that citizens only have the right to sue a dam operator for failing to obtain a water quality certification from the state, and don’t have the right to sue to enforce the terms of Section 401 certifications once they have been issued. Once the 401 certification is issued by the state, PGE argues, they have immunity from 401 citizen suits. Bringing this back to the obnoxious neighbor metaphor, this is the neighbor arguing that he has immunity from the police because he has a driver’s license.
PGE defends this immunity privilege by pointing out that Deschutes River Alliance already has a remedy – they can petition to FERC to enforce the terms of the water quality certification (because it is incorporated into the FERC license). Deschutes River Alliance, however, refused to take this route because FERC has “virtually unreviewable discretion to enforce (or… to not enforce) any alleged license violations.” Friends of the Cowlitz v. FERC, 253 F.3d 1161, 1162 (9th Cir. 2001).
In Deschutes River Alliance’s view, litigating a Section 401 citizen suit is a more reliable option than petitioning to FERC. But first Judge Simon, a federal judge in Oregon, must affirm that Deschutes River Alliance has the right to bring the Section 401 suit.
The Outcome and the Impact of the Case
On March 27, 2017, Judge Simon denied PGE’s motion to dismiss, allowing the Section 401 suit to move forward. Because PGE would rather avoid spending time and money litigating the case on the merits, they have already filed a motion asking Judge Simon to certify his order denying PGE’s motion to dismiss for appeal to the 9th Circuit Court of Appeals.
The impact of this initial decision by Judge Simon is perhaps bigger than the case itself because it reaffirms a key tool in the toolbox for public interest water advocates. As long as Judge Simon’s decision is upheld on appeal, water advocates will continue to be able to use Section 401 of the Clean Water Act to sue licensed dams that are not following the rules of their license. This allows water advocates to confront the polluter head-on in a court of law, rather than indirectly through a regulatory agency like FERC.
Big thanks to the ENR Center’s Research Associate, Doug Quirke, for being so patient and helpful on the numerous drafts of this post!
