Water and Cities

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

2. 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

3. 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

4. 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

5. 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

6. 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

7. Clackamas Extension

8. 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

9. 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

10. 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

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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. Water Quality Trading • Fascinating blog post: • http://www.energyenvironmentallaw.com/2013/04/19/can-we-please-talk-about-outcomes-for-a-change/

20. Rick Glick • (503)778-5210 tel • rickglick@dwt.com Davis Wright Tremaine 1300 SW Fifth Avenue, Suite 2400 Portland, OR 97201-5610