CWA Lawsuit Appeal Update

In June, DRA filed our opening brief with the U.S. Court of Appeals for the Ninth Circuit in our case against Portland General Electric and the Confederated Tribes of the Warm Springs Reservation. The goal of our appeal is to overturn the U.S. District Court’s 2018 ruling and, by doing so, seeks a simple outcome – to hold the Pelton Round Butte Project to the same requirements as any other entity certified to manage water quality.

In the brief, DRA raises issues with the lower court’s ruling, specifically what water quality standards apply. We highlight hundreds of water quality exceedances that were included in our lower court submissions. Our appeal then points directly to the clear requirements of Oregon’s Water Quality Standards and the plain meaning of the Project’s Clean Water Act Certification, noting continued violation of each.

By defining the applicable standards and pointing out the numerous exceedances, DRA aims to ensure that the Project’s operations comply with the state and federal water quality requirements.

Oregon’s standards and the CWA Certification work together to ensure water quality is maintained. The state standards provide the absolute minimum criteria that water quality must maintain for fish and aquatic life, among others. The Certification, created and agreed to by both state regulators and dam owners, establishes additional terms, requirements, and standards to further protect water quality below the dam. A dam may not continue operating without this Certification.

The Project’s operations frequently fail to comply with either the agreed-to Certification terms or Oregon’s minimum standards. 

In District Court, the Project’s owners essentially argued that their mere efforts to meet the standards are all that is required of them, claiming exceedances are not violations so long as they are trying to resolve these exceedances (when in reality they may or may not be). DRA strongly opposed that logic previously and renewed our opposition in our opening brief. 

In the coming months, DRA will continue to fight for the health of the Deschutes in the Ninth Circuit. Sign up for our email newsletters to keep informed on this and other issues. Your donation supports the work of the DRA including this appeal. Make a donation today!