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Deschutes River Alliance v. Portland General Electric Co.

United States District Court, D. Oregon

August 3, 2018

DESCHUTES RIVER ALLIANCE, Plaintiff,
v.
PORTLAND GENERAL ELECTRIC COMPANY, et al., Defendants.

          Daniel M. Galpern, Law Office of Daniel M. Galpern, Jonah L. Sandford, Deschutes River Alliance, Attorneys for Plaintiff.

          Beth S. Ginsberg, Stoel Rives LLP, Michael R. Campbell, Stoel Rives LLP, Attorneys for Defendant Portland General Electric.

          Josh Newton and Benjamin C. Seiken, Karnopp Petersen LLP, Attorneys for Defendant Confederated Tribes of the Warm Springs Reservation of Oregon.

          Scott J. Kaplan and Frank Hammond, Senior Assistant Attorneys General, Oregon Department of Justice, Attorneys for Amicus Oregon Department of Environmental Quality.

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Plaintiff Deschutes River Alliance (“DRA”) is a nonprofit advocacy organization comprised of individuals in Oregon who use, enjoy, and recreate in the Deschutes River and its tributaries in the vicinity of the Pelton Round Butte Hydroelectric Project (“Pelton Project” or “Project”). The Project is co-owned and co-operated by Defendants Portland General Electric Company (“PGE”) and The Confederated Tribes of the Warm Springs Reservation of Oregon (the “Tribe”). The Tribe consists of three Indian tribal groups—the Warm Springs, the Wasco, and the Paiute. Plaintiff sues PGE and the Tribe, alleging that Defendants' operation of the Project violates the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. (commonly known as the “Clean Water Act” (“CWA”)). Before the Court are the parties' cross-motions for summary judgment. Plaintiff moves for partial summary judgment on Defendants' liability under the CWA. Defendants cross-move for summary judgment, seeking dismissal of this action.

         Plaintiff's lawsuit arises under Section 505(a)(1) of the CWA, codified at 33 U.S.C. § 1365(a)(1), commonly known as the CWA's “citizen suit provision.” Plaintiff argues that the Project is operating in violation of its CWA § 401 Certificate (the “Certificate” or “Certification, ” used interchangeably), issued by the Oregon Department of Environmental Quality (“DEQ”). Plaintiff alleges that the Project's discharges in the lower Deschutes River exceed water quality standards and criteria specified in management plans incorporated into the Project's Certificate, as well as the management plans' requirement that Defendants adaptively manage the Project. Because the Court concludes that the Project is not violating its § 401 Certificate, the Court denies Plaintiff's motion for partial summary judgment and grants Defendants' cross-motions.

         BACKGROUND

         A. Legal Background

         In 1972, Congress enacted the CWA 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). States 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 states, including adopting water quality standards for waters within the state. Id. § 1313. “Water quality standards . . . consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses.” 40 C.F.R. § 131.3(i). Water quality criteria “are elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports a particular use.” 40 C.F.R. § 131.3(b).

         Oregon has designated the Deschutes River downstream of the Project—the relevant area for purposes of this lawsuit—to be used, among other things, for “Fish and Aquatic Life.” OAR 340-41-0130, Table 130A. The area is designated for “Core Cold Water Habitat Use, ” which “means waters expected to maintain temperatures within the range generally considered optimal for salmon and steelhead rearing, or that are suitable for bull trout migration, foraging and sub-adult rearing that occurs during the summer.” Figure 130A; OAR 340-041-002(13). Additionally, between October 15 and June 15 of each year, the area is designated for salmon and steelhead spawning use. Figure 130B. “Water quality in the Deschutes Basin . . . must be managed to protect the designated beneficial uses.” OAR 340-041-0130(1). Oregon has also adopted numeric water quality criteria for, as relevant here, temperature, dissolved oxygen, and pH. See OAR 340-041-0028 (temperature); -0016 (dissolved oxygen); -0021 (pH).

         States ensure compliance with water quality standards under Section 401 of the CWA, which 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 [301], [302], [303], [306] and [307] 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 [306] of this title, or prohibition, effluent standard, or pretreatment standard under section [307] of this title, and with any other appropriate requirement of State law set forth in such certification[.]

Id. § 1341(d). The certification conditions “shall become a condition on any” federal license. Id. Oregon defines a 401 Water Quality Certification as “a determination . . . that a . . . federally licensed or permitted activity that may result in a discharge to waters of the state has adequate terms and conditions to prevent an exceedance of water quality criteria.” OAR 340-041-0002.

         Congress intended states to take the lead in enforcement actions under the CWA. Gwaltney, 484 U.S. at 60 (commenting “[t]he [Senate] Committee [on Public Works] intends the great volume of enforcement actions [to] be brought by the State[.]”). The CWA also, however, empowers citizens to bring enforcement actions against any person alleged to be in violation of federal water pollution standards or limitations. See 33 U.S.C. § 1365(a)(1). “[T]he purpose behind the citizen-suit provision in the CWA is to ensure enforcement of federal environmental requirements irrespective of the actions of state agencies. The CWA plainly and unambiguously confers an opportunity among citizens to sue alleged violators when government agencies fail to act.” Or. State Pub. Interest Grp., Inc. v. Pac. Coast Seafoods Co., 341 F.Supp.2d 1170, 1179 (D. Or. 2004) (citing Ass'n to Protect Hammersley Eld, & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1014 (9th Cir. 2002)). The Court has held that citizens may sue to enforce conditions in a Section 401 certification, not just the requirement that a certification be obtained. ECF 22.

         B. Factual Background

         1. Licensing History

         The Pelton Project consists of three dams on the Deschutes River: the Round Butte Dam, the Pelton Dam, and the Reregulating Dam. ECF 73 at 4, ¶ 11. The Project is situated in Jefferson County, Oregon, within and adjacent to the Warm Springs Indian Reservation.[1] ECF 73 at 3, ¶ 6; 93 F.E.R.C. ¶ 61, 183. In 1951, the Federal Power Commission (“FPC”), predecessor to the Federal Energy Regulatory Commission (“FERC”), issued a 50-year license to PGE for the Pelton Project. Id. at ¶ 12. In 1980, FERC amended the license to designate PGE and the Tribe as joint licensees for the Pelton Project, allowing the Tribe to construct power generation facilities in the Reregulating Dam. Id. at ¶ 16. In April 2000, PGE, the Tribe, and the United States Department of Interior entered into a Long-Term Global Settlement and Compensation Agreement (“GSA”). Id. at ¶ 20. The GSA was approved by FERC and the Oregon Public Utility Commission and ratified by Congress. See In Re Portland Gen. Elec. Co., Order No. 00-459, 2000 WL 1504844 (Aug. 22, 2000); 93 F.E.R.C. ¶ 61, 183 (2000); PL 107-102, December 27, 2001, 115 Stat 974.

         In June 2001, PGE and the Tribe jointly applied for a new FERC project license. ECF 73 at ¶ 23. PGE and the Tribe simultaneously filed applications for water quality certifications for the Pelton Project, pursuant to CWA Section 401, with both the Tribe's Water Control Board (“WCB”) and with Oregon's Department of Environmental Quality (“DEQ” or “ODEQ”). Id. In June 2002, WCB and DEQ issued their respective water quality certifications. Beginning in January 2003, PGE and the Tribe participated in a facilitated Settlement Working Group with various governmental and non-governmental stakeholders to resolve issues associated with the relicensing of the Pelton Project. Id. at ¶ 25. The Settlement Working Group produced a Settlement Agreement Concerning the Relicensing of the Pelton Round Butte Hydroelectric Project, FERC Project 2030 (“Relicensing Settlement Agreement”). Id.; ECF 73-7. In July 2004, the Tribe and PGE submitted the Relicensing Settlement Agreement to FERC for approval, along with an Offer of Settlement and Joint Explanatory Statement and Request for Technical Conference (“Explanatory Statement”). ECF 75-2. On June 21, 2005, FERC approved the settlement and issued a new license to PGE and the Tribe as joint licensees of the Pelton Project. (“2005 License”). 111 FERC ¶ 61, 450 (2005). The 2005 License incorporates most of the proposed license articles contained in the Relicensing Settlement Agreement, as well as the DEQ water quality certification. Id.

         2. Certification and Water Quality Management and Monitoring Plan

         During the original license term, the Project did not meet water quality standards for temperature, dissolved oxygen, and pH. ECF 73 at ¶ 24; ECF 73-8 at 3, 23. The Project dams also created a total barrier to migration by resident and anadromous fish in the Deschutes River, preventing anadromous and resident salmonids from reaching historical spawning and rearing areas. ECF 75-2 at 4. This threatened several species of fish, including some listed as endangered under the federal Endangered Species Act. ECF 73-8 at 25. By 1973, attempts at effectuating fish passage were abandoned in favor of a fish hatchery. ECF 73 ¶ 26.

         The “centerpiece” of the Relicensing Settlement Agreement is a Fish Passage Plan. ECF 73-8 at 18 (Explanatory Statement). This plan is incorporated into the 2005 License. See 111 F.E.R.C. ¶ 61, 450; ECF 73 ¶ 30. The 2005 License also establishes Implementation Committees—a component of the Relicensing Settlement Agreement—including a Fish Committee, which consists of Defendants, several non-governmental organizations, and various federal, state, and tribal agencies. Id. ¶ 31. The Fish Committee oversees the Fish Passage Plan's implementation. ECF 75-1 at 11; ECF 75-2 at 16.

         In order to meet the key goal of restoring fish passage through the Project, the Certification, and the Fish Passage Plan, required Defendants to construct, test, and operate a selective water withdrawal facility (the “SWW”). ECF 66-8 at 1; ECF 73-8 at 24 (“The restoration of fish passage at the Project through the construction of [the SWW] facility at Round Butte Dam is the centerpiece of the [Relicensing] Settlement Agreement.”). As required by the 2005 License, Defendants designed the SWW in consultation with the Fish Committee, and the designated “Fish Agencies” (National Marine Fisheries Service, U.S. Fish and Wildlife Service, Oregon Department of Fish and Wildlife, and Bank of Natural Resources of the Confederated Tribes of the Warm Springs Reservation of Oregon) and FERC approved the design. ECF 89 ¶ 7. The SWW allows “water withdrawal from both the surface (warmer epilimnion) and the bottom (cooler hypolimnion) of the reservoir.” ECF 73-7 at 512. The SWW was designed both to allow fish passage, and to “[h]elp the Project meet temperature and water quality goals and standards in the lower Deschutes River and Project reservoirs.” ECF 73-7 at 512-13.

         The DEQ Certification, which became a condition on the 2005 License, incorporates a Water Quality Management and Monitoring Plan (“WQMMP”). The Certification noted that the WQMMP would be revised and approved after the Certification itself was approved. Upon DEQ approval of the revised WQMMP, the WQMMP became a “part of” the Certification. ECF 66-8 at 1. The WQMMP “describes procedures that will be employed by [PGE] and the [Tribe] . . . to satisfy the requirements of” the DEQ Certification. The WQMMP contains several specific management plans, including, as relevant here: a Water Temperature Management Plan (“TMP”), a Dissolved Oxygen Management Plan (“DOMP”), and a pH (Hydrogen Ion Concentration) Management Plan (“PHMP”). The Certification mandates that the SWW be operated in accordance with the TMP (ECF 66-8 at 1), the DOMP (ECT 66-8 at 4), and the PHMP (ECF 66-8 at 6) contained in the WQMMP. The Certification also requires Defendants to implement a Water Quality Monitoring Plan (“WQMP”) contained within the WQMMP.

         The WQMMP incorporates state water quality standards, and outlines a detailed plan for compliance with those standards. Shortly before the revised WQMMP was finalized, Oregon's Environmental Quality Commission adopted new temperature standards for the Deschutes Basin. ECF 95 ¶ 23. The EPA approved the new standards in March 2004. Id. These standards were not, however, incorporated into the revised WQMMP. Thus, the WQMMP, and the management plans within it, refer to—and structure compliance plans around—outdated water quality standards for both temperature and dissolved oxygen.

         Based on results of hydrodynamic and temperature modeling, the drafters concluded that blends of surface and bottom water listed in Table 2.1 of the WQMMP (called Blends 13 and 16) would “result in compliance with the temperature standard throughout the year, ” would comply with the dissolved oxygen criteria for most of the year (and, otherwise, would not sink below a different, lower standard), and would “suffice for management of pH as well.” ECF 73-7 at 515-523. The WQMMP outlines the measures Defendants are to take based on conditions at the Project. For instance, “[i]f the temperature approaches the maximum limit, the percentage of deep water discharged will be adjusted upward.” Id. at 519. Generally, “adjustments to the withdrawal blend will be made automatically by [Defendants] to ensure that discharges meet the applicable temperature standard.” Id. With respect to dissolved oxygen, because “[c]ontrolled spills at the Reregulating Dam have been shown to increase DO concentration in the discharge” of the Project, “if under the temperature management selective withdrawal regime it appears that the DO concentration in the Reregulating Dam discharge is going to drop below 11.0 mg/L or 96% saturation, [Defendants] will institute controlled spills at the Reregulating Dam” to raise dissolved oxygen concentration. Id. at 521. Similarly, although the drafters expected that the blends and measures undertaken to maintain temperature and dissolved oxygen targets would suffice for managing pH, the PHMP provides that “if pH at the Reregulating Dam is found to exceed that of the weighted average of the inflows, ” Defendants must “immediately contact ODEQ and CTWS WCB to develop an approach to reduce pH that is consistent with maintaining compliant temperature and DO values and surface withdrawal volumes necessary to facilitate smolt movement in Lake Billy Chinook.” Id. at 524. This eventuality was not expected to occur, however, because data indicated that inflow pH exceeded that of Project discharge.

         The three water quality standards and goals at issue in this case—temperature, dissolved oxygen concentration, and pH, are sometimes in tension with one another, and with the Fish Passage Plan.[2] As Defendants explain, increasing the proportion of cold deep water discharged, which serves to lower water temperature, can impair fish passage, because there is a strong, inverse relationship between deep-water withdrawals and the number of downstream migrating fish that can be captured and transported downstream below the Project. ECF 89 ¶ 12. It also has the effect of reducing dissolved oxygen concentration in the river downstream of the Project, because bottom water is relatively low in dissolved oxygen compared to surface water. ECF 90 ¶ 9. Additionally, it results in a lower supply of cold water in the reservoir, which may mean higher river temperatures later in the year, when less cold water is available for temperature control. Id. Finally, as DEQ explains, “[t]here is no operational procedure that can lower pH without adversely affecting temperature or dissolved oxygen, because bottom water that has a lower pH also has less dissolved oxygen.” ECF 95 ¶ 32.

         The Settlement Working Group, in devising the SWW and WQMMP, relied on “mathematical models, ” with “no way to know how accurately these models would match the response of the reservoirs and river once the SWW became operational.” ECF 95 ¶ 20. Thus, the WQMMP calls for an overall adaptive management approach to Project operations:

Because operation of the selective withdrawal facility has the potential to affect numerous water quality parameters, as well as fish passage success, changes in the operation of the selective withdrawal facility must consider all possible impacts, not merely a single water quality parameter. In addition, actual impacts to water quality and currents will not be known with certainty until the selective withdrawal facility is constructed, operated, and monitored, highlighting the need for an adaptive management approach to ensure compliance with water quality standards.
For the purpose of satisfying water quality standards for temperature, DO, pH, and nuisance phytoplankton, as well as ensuring downstream fish passage, and implementing the adaptive management requirements of the § 401 certification and the Section 401 Implementation Agreement, the Joint Applicants shall operate the selective withdrawal facility pursuant to general adaptive management considerations.

ECF 73-7 at 513.

         The Explanatory Statement describes what “adaptive management” means:

The essence of adaptive management is to view management actions as having an experimental component designed both to protect the resource and to produce critical information about the resource being managed, and to make changes in future management actions that reflect the knowledge gained through these measures. Thus, adaptive management includes three main components: 1) the implementation of specific protection, mitigation and enhancement measures designed to avoid or minimize the impact of a project on specific resources; 2) monitoring and evaluation of the measures to evaluate their performance towards the agreed-upon criteria, resource goals, objectives and expectations; and 3) implementing alterations and management changes that improve future performance if criteria, resource goals, objectives and expectations are not met. This approach helps to reduce uncertainty and, more importantly, provides a broader base of knowledge and experience that helps managers to manage more effectively in the face of continued uncertainty and ever-changing conditions.

ECF 73-8 at 36-37; see also 73-7 at 108, 129.

         The WQMMP also recognized that “[o]ver time, it is expected that Project operators will further refine the correlation between air temperature, wind, and other environmental variables and discharge temperature at the Reregulating Dam as compared to Round Butte Dam, and as compared to conditions that would exist if the Project were not present.” ECF 73-7 at 519. The drafters similarly expected that Defendants would, over time, “further refine the relationship between DO concentration [and pH] in the Round Butte Dam tailrace and the Reregulating Dam discharge, which will lead to more effective prediction of when DO [or pH] concentrations in the Reregulating Dam tailrace ...


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