Water and Cities Richard M. Glick Oregon City Attorneys Association May 3, 2013.

Water and Cities

Richard M. Glick

Oregon City Attorneys AssociationMay 3, 2013

Hot Issues

Municipal water rights extensions– Cottage Grove– Clackamas River water providers– Adair Village

New storm water cases– L.A. County Flood Control Dist. v. NRDC– Virginia DOT v. EPA

Water quality trading—NEA challenge

Water Rights Extensions

1987 DOJ opinion on extensions, rulemakings put hold on extension requests

Coos Bay – North Bend Water Board case HB 3038 (2005)

– Cities are different from other water users– New extensions up to 20 years + extensions– Earlier extensions grandfathered– Diligence/good cause clarified to include water

planning, not actual construction

Water Rights Extensions

HB 3038 (cont.)– Water use beyond previous maximum upon

approval of Water Management & Conservation Plan

– Fish persistence condition—first extension only

• “undeveloped portion of the permit is conditioned” • Based on “existing data and upon the advice” of

ODFW

– Codified as ORS 537.230

Cottage Grove Extension

WaterWatch v. WRD (Case No. A147071)

City completed undeveloped portion and certificate issued

Growing Communities Doctrine WRD discretion to find “good cause”; need not

cancel permit– Springfield delegated term– Cities continued development during hiatus

Cottage Grove Extension

Water used as of extension request key, not previous deadline to use water– Case will say what “undeveloped portion”

means Could fish persistence issue have been

avoided?– City had biological opinion from National

Marine Fisheries Service

Clackamas Extension

Clackamas Extension

WaterWatch v. WRD (Case No. A148870)

WRD set minimum flow requirements with annual check-ins

Growing Communities Doctrine WW argued HB 3038 set “do no harm”

standard—individual fish v. community needs WRD must rely on available data and ODFW Adaptive management approach appropriate

Adair Village

Contested case pending, in mediation Adair has outsized (85 cfs) water rights,

undeveloped for 40 years IGA with Hillsboro and Polk County WaterWatch protest

– Good cause/diligence lacking– Adair can’t use all and is “speculating”

• ORS 540.510(3) allows regional water solutions

– Fish conditions not adequate

Storm Water

Los Angeles County Flood Control District v. Natural Resources Defense Council (U. S. Supreme Court 1/8/13)– http://www.energyenvironmentallaw.com/

2013/01/10/supreme-court-decision-good-news-for-dam-owners/

– District collected storm flows in conduits that discharged to unimproved portion of same stream

– Held, not a discharge of pollutants under Clean Water Act 402, no NPDES permit required

L.A. County Flood Control Dist. v. NRDC

Storm Water

L. A. County Flood Control District (cont.)– Reaffirms dams are not point sources– South Fla. Water Management Dist., v

Miccosukee Tribe—pumping polluted water from one part of a water body to another part of the same water body is not a discharge of pollutants

Storm Water

Virginia DOT v. EPA ( U. S. Dist. Ct. 1/3/13)– http://www.accotink.org/

Accotink_Case_Decision.pdf– Held, EPA cannot set a total maximum daily

load (TMDL) for storm water flows under the Clean Water Act, can only regulate pollutants

– EPA attempted to use storm water flows as surrogate for sediment problem

– No appeal, but rules being developed

Storm Water

Iowa League of Cities v. EPA, No. 11-3412 (8th Cir. 2013)

http://www.imla.org/images/_Teleconf_/2013/5.2.2013-iowa%20league%20v.%20epa%20-%20opinion.pdf

EPA policies re “blending” and bacteria mixing zones vacated

EPA lacks authority to:– Dictate technology for meeting effluent limits– Modify effluent limits without rulemaking

• Policy “functionally similar” to a rule

Water Quality Trading

EPA and DEQ have policies favoring trading and ecomarket approaches to water quality regulatory problems—examples:– Downstream NPDES permittee contracts with

upstream food processor to reduce nutrients entering the river, addresses dissolved oxygen

– Municipal sewerage agency contracts with upstream farmers to plant riparian vegetation for shade, addresses temperature

Water Quality Trading

Clean Water Services pioneered massive tree planting program in Tualatin Basin– Satisfies temperature criteria in permit– Better ecological outcome at lower cost

than mechanical chiller– Implementation takes longer, metrics

difficult

City of Medford attempting same

WaterQuality Trading

Northwest Environmental Advocates letter to EPA of 3/15/13– DEQ implementation inconsistent with EPA regs– Objects to DEQ giving credit for riparian planting

on assumption landowners have no obligation• Nonpoint sources are given allocations under TMDL,

which assumes compliance (even though no enforcement authority)

– Implementation schedule too long

Water Quality Trading

Implications of NEA challenge– Confuses strict compliance with eco uplift– Assumes nonpoint sources can be enforced against,

or just ratcheting up pressure on point sources– Implementation of TMDL allocations for nonpoint

sources depends on funding from permittees– Implementation longer, but much better outcome– Follows NEA success taking down DEQ temperature

standards, agencies nervous

Water Quality Trading

Fascinating blog post:– http://www.energyenvironmentallaw.com/

2013/04/19/can-we-please-talk-about-outcomes-for-a-change/

Rick Glick

(503)778-5210 tel [email protected]

Davis Wright Tremaine1300 SW Fifth Avenue, Suite 2400 Portland, OR 97201-5610