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

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Presentation on theme: "Water and Cities Richard M. Glick Oregon City Attorneys Association May 3, 2013."— Presentation transcript:

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  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_Deci sion.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 Water Quality 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/201 3/04/19/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


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