United States District Court, D. Oregon
DESCHUTES RIVER ALLIANCE, an Oregon nonprofit corporation, Plaintiff,
PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, Defendant.
Douglas Quirke, Oregon Clean Water Action Project, Daniel M.
Galpern, Law Office OF Daniel M. Galpern, Attorneys for
S. Ginsberg and Michael R. Campbell, Stoel Rives LLP,
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Portland General Electric Company ("PGE") moves to
dismiss the Complaint brought by Plaintiff Deschutes River
Alliance on the ground that the Court lacks subject matter
jurisdiction. Oregon Department of Environmental Quality
("DEQ") and Washington Department of Ecology appear
as amici curiae ("Amici"). The Court
denies PGE's motion to dismiss.
courts are courts of limited jurisdiction. Gunn v.
Minton, 133 S.Ct. 1059, 1064 (2013). As such, a court is
to presume “that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary
rests upon the party asserting jurisdiction.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994) (citations omitted); see also Robinson v.
United States, 586 F.3d 683, 685 (9th Cir. 2009);
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) for lack of “subject-matter jurisdiction,
because it involves a court's power to hear a case, can
never be forfeited or waived.” United States v.
Cotton, 535 U.S. 625, 630 (2002). An objection that a
particular court lacks subject matter jurisdiction may be
raised by any party, or by the court on its own initiative,
at any time. Arbaugh v. Y&H Corp., 546 U.S. 500,
506 (2006); Fed.R.Civ.P. 12(b)(1). The Court must dismiss any
case over which it lacks subject matter jurisdiction.
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction may be either “facial” or
“factual.” See Safe Air for Everyone,
373 F.3d at 1039. A facial attack on subject matter
jurisdiction is based on the assertion that the allegations
contained in the complaint are insufficient to invoke federal
brings this action under the citizen suit provision in
section 505 of the Clean Water Act (“CWA” or the
“Act”), 33 U.S.C. § 1365(a)(1). Plaintiff
alleges that PGE is responsible for past and continuing CWA
violations at its Pelton Round Butte Hydroelectric Project
(the “Project”). The Project consists of three
dams and a selective water withdrawal facility, among other
associated developments, between river miles 100 and 120 of
the Deschutes River. In 2002, the Project underwent
relicensing through the Federal Energy Regulatory Commission
(“FERC”). As part of that process, DEQ issued a
water quality certification (“the Water Quality
Certification”) for the Project, pursuant to section
401 of the CWA. Each of the requirements specified in the
Water Quality Certification is a condition of the FERC
alleges that PGE has violated several of the requirements
contained in the Water Quality Certification that are
designed to ensure that discharges comply with all applicable
state water quality standards. Specifically, part of the
Water Quality Certification is a Water Quality Management and
Monitoring Plan that sets forth “management
plans” to ensure compliance with certain water quality
standards, including those relating to hydrogen ion
concentration (pH), temperature, and dissolved oxygen levels.
Plaintiff asserts that PGE has repeatedly violated the Water
Quality Certification by failing to operate the Project in
accordance with the management plans.
moves to dismiss the lawsuit for lack of subject matter
jurisdiction, arguing that the CWA's citizen suit
provision does not allow a civil action challenging
compliance with conditions contained in a water
quality certification issued under section 401 of the CWA.
PGE contends that only the licensing entity-not citizens, not
states, and not the Environmental Protection Agency
(“EPA”)-has authority to enforce certification
conditions. Instead, asserts PGE, because any condition that
a state includes in a water quality certification is
incorporated into the license or permit, only the licensing
entity may enforce permit conditions. Here, the licensing
entity is FERC. Thus, according to PGE, Plaintiff (or a
state) may seek relief by petitioning FERC to enforce the
permit conditions. See 16 U.S.C. § 823b
(Federal Power Act enforcement mechanism); 18 C.F.R. §
385.206 (describing complaint process that an interested
person may use to obtain action by FERC, including with
respect to a Federal Power Act license). Alternatively,
argues PGE, a state may be able to enforce section 401
certification conditions under state law.
See 33 U.S.C. § 1370 (“nothing in this
chapter shall . . . preclude or deny the right of any State .
. . to adopt or enforce” any more stringent standard or
limitation respecting discharges of pollutants); see,
e.g., OAR 340-012-0140(2)(a)(G) & (3)(a)(F) (setting
penalties for any violation of a CWA section 401 water
Principles of Statutory Interpretation
Congress has provided Plaintiff with a cause of action is
“a straightforward question of statutory
interpretation” to be resolved using “traditional
principles of statutory interpretation.” Lexmark
Int'l, Inc. v. Static Control Components, Inc., 134
S.Ct. 1377, 1388 (2014). “The purpose of statutory
construction is to discern the intent of Congress in enacting
a particular statute.” Robinson, 586 F.3d at
686. The plain meaning of the statute controls, unless such a
reading would result in unreasonable or impracticable
results. Id. at 687. In determining the plain
meaning, the Court may look to “the language and design
of the statute as a whole.” Id. (quoting
Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir.
2006)). A court should “not [be] guided by a single
sentence or member of a sentence, but look to the provisions
of the whole law, and to its object and policy.”
Dole v. United Steelworkers of Am., 494 U.S. 26, 35
(1990) (quotation marks omitted; alteration in original).
Indeed, “[i]t is a cardinal canon of statutory
construction that statutes should be interpreted harmoniously
with their dominant legislative purpose.”
Valladolid v. Pac. Operations Offshore, LLP, 604
F.3d 1126, 1133 (9th Cir. 2010) (quoting United States v.
Gallenardo, 579 F.3d 1076, 1085 (9th Cir. 2009));
see also Bob Jones Univ. v. United States, 461 U.S.
574, 586 (1983) (“It is a well-established canon of
statutory construction that a court should go beyond the
literal language of a statute if reliance on that language
would defeat the plain purpose of the statute[.]”). If
a statute is ambiguous, legislative history may inform
congressional intent. See Woods v. Carey, 722 F.3d
1177, 1181 (9th Cir. 2013).
CWA's Purpose and Framework
enacted the CWA in 1972 to “restore and maintain the
chemical, physical and biological integrity of the
Nation's waters.” 33 U.S.C. §1251(a). Except
when in compliance with one of the permitting schemes in the
Act, the “discharge of any pollutant by any
person” is prohibited. Id. § 1311(a)
(“Except as in compliance with this section and
sections 1312, 1316, 1317, 1328, 1342, and 1344 of this
title, the discharge of any pollutant by any person shall be
have the “primary responsibilities and rights” to
“prevent, reduce, and eliminate pollution” and
“to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources[.]” Id. § 1251(b). To that end,
the CWA imposes several duties on the states, including
adopting water quality standards for the waters within the
state, id. § 1313(a), and issuing National
Pollutant Discharge Elimination System (“NPDES”)
permits under Section 402 to “point sources” that
discharge pollutants. Id. § 1342.
states ensure compliance with water quality standards under
Section 401. That section applies when an applicant seeks a
federal license or permit to undertake any activity that
might result in any discharge into navigable waters.
Id. § 1341. Under section 401(a) of the CWA,
the state's “certification” means that
“any such discharge will comply with the applicable
provisions of sections , , ,  and 
of this title.” Id. § 1341(a)(1). Section
401(d) of the CWA also provides:
Any certification . . . shall set forth any effluent
limitations and other limitations, and monitoring
requirements necessary to assure that any applicant . . .
will comply with any applicable effluent limitations and
other limitations, under section [301 or 302] of this title,
standard of performance under section  of this title, or
prohibition, effluent standard, or pretreatment standard
under section  of this title, and with any other
appropriate requirement of State law set forth in such
Id. § 1341(d). The certification conditions
“shall become a condition on any” federal
CWA's Citizen Suit Provision
empowers citizens to bring enforcement actions against any
person alleged to be in violation of federal water ...