Riverkeepers v. Or. Dep't Of Envtl. Quality

• Decision Date: 28 April 2010
• Docket Number: A136050.,060100752
• Citation: 235 Or.App. 132,230 P.3d 559
• Parties: TUALATIN RIVERKEEPERS, an Oregon non-profit corporation; Willamette Riverkeeper, an Oregon non-profit corporation; Columbia Riverkeeper, an Oregon non-profit corporation; and Liz Callison, Petitioners-Appellants,v.OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, an Agency of the State of Oregon; and Oregon Environmental Quality Commission, a Commission of the State of Oregon, Respondents-Respondents,andClean Water Services, City of Portland, Port of Portland, County of Multnomah, County of Clackamas, Clackamas County Service District Number One, Surface Water Management Agency of Clackamas County, City of Gladstone, City of Happy Valley, City of Lake Oswego, City of Milwaukie, City of Oregon City, City of River Grove, City of West Linn, City of Wilsonville, Oak Lodge Sanitary District, City of Gresham, and City of Fairview, Intervenors-Respondents.
• Court: Oregon Court of Appeals

235 Or.App. 132

230 P.3d 559

TUALATIN RIVERKEEPERS, an Oregon non-profit corporation; Willamette Riverkeeper, an Oregon non-profit corporation; Columbia Riverkeeper, an Oregon non-profit corporation; and Liz Callison, Petitioners-Appellants,v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, an Agency of the State of Oregon; and Oregon Environmental Quality Commission, a Commission of the State of Oregon, Respondents-Respondents,andClean Water Services, City of Portland, Port of Portland, County of Multnomah, County of Clackamas, Clackamas County Service District Number One, Surface Water Management Agency of Clackamas County, City of Gladstone, City of Happy Valley, City of Lake Oswego, City of Milwaukie, City of Oregon City, City of River Grove, City of West Linn, City of Wilsonville, Oak Lodge Sanitary District, City of Gresham, and City of Fairview, Intervenors-Respondents.

060100752; A136050.

Court of Appeals of Oregon.

Argued and Submitted May 11, 2009.

Decided April 28, 2010.

Christopher Winter argued the cause for appellants. With him on the joint briefs were Crag Law Center and Brent Foster.

Erin C. Lagesen, Assistant Attorney General, argued the cause for respondents. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jay T. Waldron, Portland, argued the cause for intervenors-respondents. With him on the joint brief were Laura Maffei, Andrew J. Lee and Schwabe, Williamson & Wyatt, P.C.; G. Kevin Kiely, James Kincaid, Carla Scott, and Cable Huston Benedict Haagensen & Lloyd LLP; David Doughman and Beery Elsner & Hammond LLP; and David Ris and Gresham City Attorney's Office.

James J. Nicita filed the brief amicus curiae for Northwest Environmental Defense Center, Northwest Environmental Advocates, Native Fish Society, Friends of the Clackamas River, and Barbara Kemper.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.^*

SERCOMBE, J.

Petitioners sought judicial review of several municipal storm water permits issued by respondent ¹ pursuant to ORS 468B.050 and the federal Clean Water Act see 33 U.S.C. § 1342.² They appeal following the trial court's grant of summary judgment in favor of respondent, contending that, in issuing the permits, respondent acted inconsistently with the requirements of ORS 468B.025(1)(b) and OAR 340-045-0015(5)(c) as well as ORS 468B.050 and OAR 340-042-0080. We affirm.

The storm water permits at issue are all National Pollutant Discharge Elimination System (NPDES) permits, issued by respondent as part of the state's implementation of the Clean Water Act. See ORS 468B.035 (EQC “may perform or cause to be performed any acts necessary to be performed by the state to implement” the provisions of the Clean Water Act). Although municipal storm water was not initially regulated pursuant to the NPDES program,³ eventually, the Clean Water Act was amended to explicitly require regulation of certain storm water discharges. See American Min. Congress v. U.S.E.P.A., 965 F.2d 759, 763 (9th Cir.1992) (discussing amendments to Clean Water Act requiring that regulation). After those amendments but prior to 1994, most discharges composed entirely of storm water did not require an NPDES permit. 33 U.S.C. § 1342(p)(1). However, discharges from municipal separate storm sewer systems⁴ serving populations of more than 100,000 people were subject to a permit requirement. 33 U.S.C. § 1342(p)(2)(C)-(D). The permit requirement now applies to an even larger range of municipal storm water dischargers: OAR 340-045-0015(2) provides that, “[w]ithout first obtaining an NPDES permit, a person may not discharge into navigable waters * * * storm water subject to permit requirements in 40 CFR § 122.26 or § 122.33, including storm water from large, medium, and regulated small municipal separate storm sewer systems[.]”

The NPDES permits at issue in this case were issued by respondent and authorize the municipal permittees, who are intervenors in this judicial review proceeding, to

“implement a storm water management program to reduce the contribution of pollutants in storm water to the maximum extent practicable (MEP), to address where applicable TMDL [total maximum daily load] wasteload allocations, and to discharge storm water to waters of the State, in conformance with all the requirements and conditions set forth in the attached schedules * * *.” ⁵

The permits mandate that the permittees “implement all applicable provisions in the Storm Water Management Plan (SWMP) as the associated Monitoring Program” and incorporate the SWMP by reference.

“The SWMP and associated Monitoring Program include best management practices (BMPs), monitoring triggers, narrative conditions, adaptive management and other elements designed to reduce the introduction of pollutions into the waters of the State from [municipal separate storm sewer systems] to the maximum extent practicable (MEP). The SWMP also includes evaluation and reporting requirements designed to measure the effectiveness of BMPs and other programs.”

Pursuant to those permits, the municipal permittees discharge storm water into a number of rivers and streams, including the Columbia, Willamette, and Tualatin Rivers.

Although the permits are extensive, it is undisputed that that they do not contain conditions stating that the storm water discharges must comply with state water quality standards. In addition, the permits do not specify wasteload allocations⁶ in the form of numeric effluent limits; they instead incorporate benchmarks. They also require compliance with the SWMP, which, in turn, incorporates best management practices. It is the permits' lack of numeric limits and conditions requiring compliance with state water quality standards that gave rise to this case.

On summary judgment, the trial court concluded that “the agency did not erroneously interpret a provision of law in issuing the final orders before the Court, that the agency's exercise of discretion was not inconsistent with an agency rule, and the agency's discretion was not outside the range of discretion delegated to the agency by law[.]” Accordingly, it entered a general judgment affirming the permits and dismissing the judicial review proceeding with prejudice. Petitioners seek review of that dismissal.

ORS 183.484(5) provides the criteria for judicial review of orders in other than contested cases: ⁷

“(a) The court may affirm, reverse or remand the order. If the court finds that the agency has erroneously interpreted a provision of law and that a correct interpretation compels a particular action, it shall:

“(A) Set aside or modify the order; or

“(B) Remand the case to the agency for further action under a correct interpretation of the provision of law.

“(b) The court shall remand the order to the agency if it finds the agency's exercise of discretion to be:

“(A) Outside the range of discretion delegated to the agency by law;

“(B) Inconsistent with an agency rule, an officially stated agency position, or a prior agency practice, if the inconsistency is not explained by the agency; or

“(C) Otherwise in violation of a constitutional or statutory provision.

“(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

We review the trial court's judgment to determine whether it correctly assessed respondent's actions under the standards set forth in ORS 183.484(5). See

G.A.S.P. v. Environmental Quality Commission, 198 Or.App. 182, 187, 108 P.3d 95 rev. den., 339 Or. 230, 119 P.3d 790 (2005) (we review to determine compliance with the standards set forth in ORS 183.484(5)). The issues presented in this case are purely legal in nature. Thus, we review to determine whether, in issuing the permits, respondent “erroneously interpreted a provision of law” and whether respondent exercised its discretion “outside the range of discretion delegated” by law, or acted “inconsistent[ly] with an agency rule” or “otherwise in violation of * * * a statutory provision.” ORS 183.484(5). Specifically, we examine the requirements of the statutory and regulatory provisions that petitioners contend respondent violated in issuing the permits.

In their first assignment of error, petitioners assert that, because the permits “do not ensure that the [allowed] discharges will comply with and protect Water Quality Standards,” respondent's issuance of those permits violated the requirements of ORS 468B.025(1)(b) and OAR 340-045-0015(5)(c).⁸ In essence, petitioners contend that, in light of ORS 468B.025, respondent was required to impose stricter permit requirements on municipal storm water discharges than are required pursuant to the federal scheme. We look first at the statute, which we construe by examining its text, context, and any legislative history submitted by the parties, giving the legislative history the weight, if any, that we conclude it merits. State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

ORS 468B.025 provides:

“(1) Except as provided in ORS 468B.050 or 468B.053, no person shall:

“(a) Cause pollution of any waters of the state or place or cause to be placed any wastes in a location where such wastes are likely to escape or be carried into the waters of the state by any means.

“(b) Discharge any wastes into the waters of the state if the discharge reduces the quality of such waters below the water quality standards established by rule for such waters by the Environmental Quality Commission.

“(2) No person shall violate the conditions of any waste discharge permit issued under ORS 468B.050.

“(3) Violation of subsection (1) or (2) of this section is a public nuisance.”

ORS 468B.050, in turn, authorizes DEQ to issue permits and sets out circumstances in which a permit is required. See also

EQC v. City of Coos Bay, 171...