Albany says in court that trying to comply with a new state-issued stormwater discharge regulation would cost the city $5-7 million over five years. The city is asking the court to declare that the DEQ violated the Clean Water Act and Oregon law in issuing the regulation, and to set it aside. (See an update below.)
In Linn County Circuit Court, lawyers for Albany filed a petition for judicial review on Jan. 28. As defendants the action names the Oregon Department of Environmental Quality, the Oregon Environmental Quality Commission, and DEQ Director Richard Whitman.
A hearing on a preliminary injunction requested by the city has been twice postponed and now is scheduled before Circuit Judge Thomas A. Hill at 11 a.m. Feb. 19.
The DEQ filed the regulation on stormwater discharges on Nov. 30, 2018. It’s called a “Phase II MS4 Permit” and tells Albany and 19 other cities and six counties what they must do to keep pollution in rainwater runoff from reaching streams. Albany and other affected cities have been working with the DEQ for years, but the agency ignored their objections that the requirements were impossible or too expensive to meet.
Albany’s petition for review was filed by Casey M. Nokes and Laura Maffei, lawyers with the Portland firm Cable Huston LLP.
The city makes numerous points, all boiling down to its argument that the state regulation goes well beyond what’s required by the federal Clean Air Act, and that therefore it violates the state constitution’s ban against unfunded mandates.
For instance, the permit says that if it’s determined a discharge violates a water quality standard, the city has 48 hours to start an investigation, and 60 days to report to DEQ the corrective action taken or planned, and then must carry out the action as approved by the DEQ.
The city argues that this goes beyond the federal requirement to do what’s practicable. It’s also “technically infeasible when applied to discharges from pet, avian and wildlife activities, illegal camps, illegal discharge of human waste, and discharges from atmospheric deposition, all of which have the potential to cause or contribute to a violation of a water quality standard.”
Protecting the rivers from bacteria, the city’s petition says, would require almost constant investigation and reporting to the DEQ of illegal camps and wildlife and pet droppings. “This is technically infeasible, impracticable, and a violation of the Clean Water Act,” the suit says.
Several other Oregon jurisdictions have filed similar actions in other courts. Albany residents have to hope that the city prevails. Otherwise, the still-modest monthly rain tax is going to balloon even faster than the city now plans. (hh)
(Feb. 19) By mutual consent of the parties, the court has stayed the enforcement of the MS4 permit until further notice. What happens next is unclear, but presumably the stay will give the DEQ and affected jurisdictions a chance to work out a more feasible and less costly set of storm water regulations.