Oregon
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CLEAN WATER ACT LAWSUITS CHALLENGE WATER SUPPLIER OPERATIONS What legal actions have been filed? Two lawsuits have been filed under the Clean Water Act citizen suit provisions, alleging violation of §301(a) of the Act.
What do the plaintiffs allege? Both suits allege that there have been and continues to be "discharge of pollutants" to the waters of the United States without a permit, in violation of §301(a) of the Clean Water Act, 33 U.S.C§1311(a). This law prohibits the discharge of any pollutant into waters of the United States without an NPDES (National Pollution Discharge Elimination System) permit. The plaintiffs assert that an NPDES is necessary under both the federal law and Oregon statutes (ORS 468B.050). They demand that the defendants obtain an NPDES permit and cease discharges until permits are issued. Plaintiffs in the Talent case also seek civil penalties. What are the issues in the cases? Talent Irrigation District In the case filed against Talent Irrigation District (TID), an Oregon municipal corporation, the plaintiffs allege that TID has discharged, and continues to discharge pollutants through a point source(s) on a regular basis. They allege that the district has discharged into irrigation canals, Bear Creek and other "waters of the United States." The filing asserts that the TID irrigation canals "constitute waters of the United States." The alleged "pollutants" described in the litigation are chemicals, herbicides such as acrolein and copper sulfate, used to control vegetation in irrigation canals. The chemicals are all EPA registered herbicides. The plaintiffs state that "neither the EPA nor the DEQ has commenced or is diligently prosecuting a civil or criminal action to redress the continuous and ongoing violations, even though DEQ fined the district for any accidental chemical spill in 1996. In addition to seeking to enjoin discharges pending issuance of an NPDES permit, the plaintiffs ask the court to award civil penalties in the amount of $27,500 per day of violation, for those days in 1997 when violations occurred, and $25,000 per day of violation for occurrences up to the statute of limitation, five years prior. Additionally, the court is requested to award costs for attorneys and expert witnesses. The court is also requested to order the defendant to monitor and sample discharges and to report to the DEQ and EPA from the time of the court order through the next two years. The plaintiffs also want the court to require TID to participate in and fund research into alternative methods to control vegetation in irrigation canals, something TID is already doing. Klamath Drainage District The Klamath Forest Alliance and ONRC Action claim that the U.S. Bureau of Reclamation (Reclamation) is discharging pollutants into the Klamath River without an NPDES permit. The cases focus on the "Straits Drain", including drains within the Klamath Drainage District, an Oregon municipal corporation. As operator of the drains, Reclamation is alleged to have added large amounts of pollutants into the Klamath River since 1992 without an NPDES permit. The alleged pollution is "chemical wastes, municipal sewage, biological materials, industrial and agricultural waste". The alleged discharge results from discharges from sewage plants operated by the City of Merrill, the City of Malin, and Kingsley Field (a City of Klamath Falls facility), but other discharges are also alleged. The plaintiffs demand declaratory relief to stop the discharges. The injunction to cease discharge would remain in effect until a further order of the court. Plaintiffs further request reimbursement of legal and other costs required as a result of the litigation. Civil penalties are not requested in this case. What is the State of Oregon’s role for issuing NPDES permits under the Clean Water Act? The state adopted laws in 1976 to implement the Clean Water Act provisions. Oregon administers the NPDES program through the state’s Department of Environmental Quality (DEQ). Oregon DEQ has not required an NPDEs permit for the use of herbicides by water suppliers such as irrigation districts. DEQ leaves the regulation of herbicides to the jurisdiction of the Oregon Department of Agriculture to regulate under FIFRA (Federal Insecticide Fungicide and Rodenticide Act) and does not require point-source permits for these uses. DEQ has never suggested an NPDES permit is required for the Straits Drain. What are the concerns of OWRC members? As an association of irrigation districts and other water suppliers, OWRC is concerned about protecting the Clean Water Act exemption for agricultural return flows from discharge permit requirements and regulation of delivery systems by a complex permit process. OWRC is committed to protecting water quality, but strongly opposes citizens’ suits challenging problems that have already been solved. Issues to be resolved in these cases include:
What are the ramifications of obtaining an NPDES permit from DEQ?
How have fish losses from the Talent Irrigation District spill been addressed? In the Talent Irrigation District spill in 1996, some fish losses occurred. An alleged violation in the TID case is that the district "released the aquatic herbicide acrolein through a badly leaking canal gate into Bear Creek, causing the death of 90,000 juvenile steelhead." The release occurred in May 1996. DEQ took strong enforcement action against TID for the May 1996 acrolein release. DEQ fined the district; so did the Oregon Department of Fish and Wildlife. Talent Irrigation District’s Response Since the 1996 spill, TID has worked cooperatively with ODFW, DEQ and the Oregon Department of Agriculture (ODA), as well as the U.S. Bureau of Reclamation, the Oregon Lakes Association, Oregon Water Resources Congress, Portland State University, and others on a statewide demonstration project to provide a range of aquatic weed control methods that minimize use of toxic chemicals and assure best management practices when they are used. In normal weed control using acrolein, the chemical is not released from the canal system. Acrolein is a registered aquatic herbicide and the label states that treated water cannot be released to fish bearing water for six days. Irrigation districts follow these instructions when treating canals. The Oregon Water Resources Congress (OWRC) has worked with TID and Reclamation to develop an alternative vegetation management demonstration project and identify a range of tools that may be used, in addition to or in lieu of chemicals, under specific circumstances. Funding has been secured for a major portion of the project and some of the actions have already begun. In addition to this study, TID is using a new elemental copper algaecide, which is more fish friendly, into its vegetation management program. TID has actively participated in water quality enhancement projects providing benefits for the Bear Creek Watershed area of the Rogue River Basin, both before and after the accident. The district has taken action on its own initiative without federal financial assistance at the following sites: --Coleman Creek Project – estimated total cost of $1.2 million --Two pipeline projects enclosing surface water at a cost of $433,000 --Piping Talent Avenue at a cost of $170,000 --Completion of Emigrant Creek Siphon and Canal Improvement for $75,000 --Near completion of McDonald Ditch Flume replacement at a cost of $140,000 In addition, 5 other pipeline projects are either completed, or near completion. In addition to protecting the quality of the water, these pipelines provide significant water conservation benefits. The direct benefit to Bear Creek is the reduction of high nutrient, high temperature water flowing into the creek, replacing the water with high quality water from the Emigrant Reservoir source to enhance water quality in the creek. The Oak Creek fishscreen project has been completed and the district plans additional capital improvements in the future: --Continuation of replacing open canals with gravity pressure pipelines --Continuation of canal lining projects --Installation of flow meters within gravity pressure pipelines to better track use and efficiency --Installation of remote operation headgate controls in three locations to assure less dramatic fluctuations in the flows of Bear Creek --Abandonment of numerous structures in Anderson Creek and Coleman Creek to reroute the water delivery system to eliminate 6 diversions and two pumping plant locations. Role of Reclamation The Bureau of Reclamation has cooperated with the district and supports the district’s efforts to enhance water quality and district efficiency. A reconnaissance plan for conservation and water quality improvements is currently underway by Reclamation in the Rogue River Basin, which will identify areas of opportunity for Talent Irrigation District, the Medford Irrigation District and the Rogue Valley Irrigation District. The program ensued from part of the $1 million provided by Congress at the request of OWRC, for Oregon projects resulting in water conservation. OWRC’s Role OWRC will work with the Talent Irrigation District, the Bureau of Reclamation and other parties to find water quality solutions that may be effective tools for districts statewide. We anticipate participating in the litigation to represent the interests of all water suppliers affected by these cases. OWRC’s concern is how the Clean Water Act is implemented at the federal and state level and the resulting impact on our member districts. CLEAN WATER ACT PROJECT OWRC will release the week of January 19 a project outline discussing development of a guidance manual for water suppliers, a workshop and seminar program for training, and an environmental management demonstration project. Information regarding the project will be available at the web page site at that time.
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