Regulating the Willamette River
By J. Mark Morford
The recent culmination of the Oregon Department of Environmental Quality’s (DEQ’s) proposed Total Maximum Daily Loads (TMDLs) for the Willamette (see Aldrich/Rubin/Simpson, Insider #352), jostling at the Portland Harbor Superfund site, and a host of development projects focuses attention on environmental regulation of the Willamette River. For as long as man has walked this region, valley residents have looked to the river for their livelihood. As uses have intensified over the past 100 years, a host of environmental laws has moved in to govern the many competing interests. This article first examines some of the more intense activities that occur in and near the Willamette River and how their environmental impacts are regulated. It then considers the overlaps of these regulatory programs and their effects.
Regulation of the Willamette River is largely a function of activity. Although some laws, like the Clean Water Act, 33 USC § 1251 et seq (CWA), have broad effects, there is no comprehensive body of environmental law regulating the river. Consider the following survey of activities and attendant laws:
Fishing is probably the oldest human activity in the Willamette River. Only in the past century has it become regulated, principally by Oregon Department of Fish and Wildlife rules restricting whether and when certain species can be hooked, cooked and eaten by anglers. OAR ch 635. The federal Endangered Species Act (ESA) prohibits taking certain species of fish altogether.
Another ancient use, commercial ship traffic on the river is largely unregulated from an environmental perspective. The Oil Pollution Act of 1990, 33 USC § 2701 et seq, and the Comprehensive Environmental Response Compensation and Liability Act, 42 USC § 9601 (CERCLA or "Superfund"), create and limit liability for oil spills from ships. Other federal laws regulate the hull construction of some types of ships. The CWA regulates certain discharges from the loading and unloading of ships. No laws, however, directly regulate the full range of potential environmental impacts from ships (e.g., bank erosion, channel turbidity, in-water noise).
Directly related to shipping, the Willamette has been periodically dredged to deepen or widen the channel to the Port of Portland. Dredging requires a permit issued by the US Army Corps of Engineers under § 404 of the CWA, which in turn triggers a requirement for consultation with federal fish and wildlife agencies under § 7 of the ESA. In recent years, following the listing of many salmonid species as threatened or endangered, this consultation requirement has become the most significant regulatory hurdle for dredging activities. Dredging also raises questions about where and how dredge spoils can be managed, which may implicate the solid waste provisions of the Solid Waste Disposal Act, 42 USC § 6901 et seq, and related state laws.
Hydroelectric Power Generation
Dams constructed for power generation and subject to the Federal Power Act are required to obtain a license from the Federal Energy Regulatory Commission (FERC). As an action by a federal agency, a FERC license triggers consultation requirements under § 7 of the ESA. These consultation requirements in many ways have swallowed the FERC licensing process so that ESA issues dominate the license. These licenses also require certification by DEQ under § 401 of the CWA that the project will satisfy state water quality standards. To further complicate the FERC process, treaty rights held by native American tribes also can be implicated.
Withdrawing water from the Willamette River for some beneficial purpose usually requires a water right claim recognized by the Oregon Water Resources Department (WRD), or a water right permit or certificate issued by WRD. OAR ch 690. Although the Willamette typically has an abundance of water, the total of all the pre-1909 claims to use water and the post-1909 water right permits and certificates issued by WRD for water from the river and its tributaries is substantial. In fact, if only the pre-1909 water right claims associated with the dam at Willamette Falls were to be fully honored, those claims by themselves are large enough to restrict many if not most water uses upstream in a low flow year. According to recent surveys, the number of unauthorized water withdrawals continues to be a problem on the Willamette. Pre-1909 water right claims on the Willamette River remain unadjudicated and probably will not be adjudicated for decades, leaving pre-1909 claimants and holders of water right permits and certificates uncertain as to the extent of their respective rights.
Unscreened water intakes can be harmful to fish and can run afoul of Section 9 of the ESA, which, along with rules promulgated by the US Fish and Wildlife Service (FWS) and National Oceanic & Atmospheric Administration (NOAA) Fisheries, prohibit the unauthorized taking of any listed species. Although not a regulatory mandate, screening criteria developed by NOAA Fisheries can provide safe harbor protection against the unauthorized take of species under NOAA Fisheries’ jurisdiction. 50 CFR § 223.203(b)(9). In addition, the US Environmental Protection Agency (EPA) recently announced that it will soon publish proposed rules regulating cooling water intakes at existing manufacturing facilities. Water withdrawals typically involve a return flow back to the river, which is regulated in most cases as a point source discharge.
Point Source Discharges
Frequently the focus of attention and heavily regulated, point source discharges include municipal wastewater and stormwater discharges and discharges from industrial facilities. These discharges require a National Pollutant Discharge Elimination System (NPDES) permit issued by DEQ under § 402 of the CWA. These discharges must meet water quality standards in the river (subject to exceptions for mixing zones). DEQ has proposed for public comment (comment period closes on January 14, 2005) TMDL regulation for bacteria, temperature and mercury. TMDL regulation includes allocations of the load (waste load allocation or WLA) to individual point sources and to other sources generally. [See http://www.deq.state.or.us/WQ/TMDLs/WillametteBasin.htm#W.] These WLAs will further restrict point source discharges. The Oregon anti-degradation rule, OAR 340-041-0004, also restricts any new pollution to be added to the river. The prevailing theory is that individual NPDES permits issued by states (rather than directly by EPA) are not subject to § 7 consultation requirements under the ESA, but NPDES permits may not protect holders from ESA violations.
Logging activities occur in riparian areas adjacent to the river and its tributaries. These activities are regulated by the Oregon Forest Practices Act, ORS ch 527, which restricts cutting in the riparian buffer zone, regulates road and bridge building to reduce sediment loads, and regulates chemical usage to protect water quality. Forestry activities on federal lands require § 7 consultation under the ESA, and § 9 of the ESA and accompanying regulations prohibit actions on private land that result in taking a listed species (such as the spotted owl).
The Oregon Water Quality Management Act, ORS 568.900 et seq. requires basin plans to control erosion and siltation and manage animal wastes and riparian areas. This law requires individual farmers to develop farm plans consistent with the basin plan. For the most part, this law encourages the use of best management practices. Most agricultural discharges to the Willamette River are deemed to be non-point source discharges and not subject to permitting requirements. CWA § 502(14).
Big rivers and their floodplains contain vast reserves of gravel and sand. These resources are mined from land close to the rivers and even in the river beds themselves. All mining activities are subject to the regulations and permitting requirements of the Oregon Department of Geology and Mineral Industries. OAR ch 632, div 30. For the Willamette, the river bed and banks belong to the State, and mining in these areas is subject to the sand and gravel leasing rules of the Oregon Department of State Lands (DSL). OAR ch 141, div 14. Activities in the river itself are also subject to permitting requirements under § 404 of the CWA, which triggers consultation requirements under § 7 of the ESA.
With more than half the state’s population, the Willamette Valley is under intense development pressure. Development along the river’s shores is subject to a host of regulatory programs. The most dominant requirements flow from local land use requirements. In addition to restricting the nature of the use (e.g., residential, farming, commercial), these local ordinances can impose environmental or greenway overlay zones that protect ecological and scenic interests, which requirements vary from one municipality to the next. Like many other aspects of regulation of the river, these land use requirements continue to evolve. If development involves any filling or structures in the river, a host of additional requirements come into play, including CWA § 404 permits, the Rivers and Harbors Act of 1899 and DSL license and leasing requirements. OAR ch 141, div 82. Except to the extent it has granted ownership rights to others, the state owns the bed and banks of the Willamette River up to the ordinary high water mark. In addition, any fill or removal or other construction activity within waters of the state, including wetlands, requires a fill or removal permit from DSL. OAR ch 141, div 85. DSL is required to notify the Oregon Department of Fish and Wildlife (ODFW) of proposed permits. ODFW will encourage, and DSL typically accepts, insertion into state fill or removal permits of in-water work restrictions, specifying (among other things) a narrow window in which the work can be done to avoid potential impacts on fish.
Possibly the most heavily regulated activity in the Willamette River is cleanups. These range from the sediment issues being addressed by EPA and DEQ in the Portland Harbor Superfund Site to upland cleanups occurring throughout the basin. Mostly, these cleanups are managed and regulated under CERCLA and the Oregon Cleanup Law, ORS 465.200 to 545. When the cleanup involves work in the river itself, however, the full range of regulatory programs are triggered including CWA § 404 permitting, ESA § 7 consultation, and DSL license and leasing requirements pursuant to OAR ch 141, div 82. DEQ-led cleanups are actually exempt from DSL fill and removal permits, but the substantive requirements of such permits must be applied by DEQ. OAR 141-085-0022.
Dear to the web foot heart, the Willamette is revered for recreation. With only minor exceptions, the environmental impacts of recreation activities are mostly unregulated.
The above examples are by no means an exhaustive list, but this survey illustrates the complexity of the web of regulations that govern environmental quality in the Willamette River. Although all the applicable laws have profound effects, this regulatory web is anchored at the corners by four laws that have the greatest impact: the CWA, ESA, CERCLA, and local land use ordinances.
CLEAN WATER ACT
Certainly, it is the CWA that has the most profound effects on water quality in the Willamette River. Under the CWA, DEQ sets (and EPA approves) water quality standards applicable to key pollutants. These water quality standards, in turn, drive the host of rules restricting pollution of the river. The water quality standards most directly affect point sources that require NPDES permits issued under § 402 of the CWA. In issuing these permits, DEQ must ensure that the discharge will not result in a violation of the water quality standards in the river itself. Point source dischargers can satisfy this requirement either by treating their effluent to meet water quality standards at the end of pipe (which often is infeasible) or by designing the discharge point to encourage rapid mixing of the effluent with the river water so that the standards are met at the edge of a defined mixing zone. Environmental activists have been challenging the use of mixing zones. Pressured by recent citizen suit litigation, EPA disapproved Oregon’s alternative mixing zone rule on October 1, 2004. DEQ’s recent revisions to OAR 340-041-0053 include more detailed requirements for traditional mixing zones, but clearly preserve the use of mixing zones in streams that still have assimilative capacity for the pollutant in question. It appears that DEQ will not allow mixing zones for pollutants for which the Willamette is designated as water quality limited, except for those pollutants like temperature that tend to dissipate.
Water quality standards also have an effect on non-point sources, but the effect is more indirect. Under § 319 of the CWA, each state is supposed to develop plans for controlling pollution from non-point sources through the use of best management practices. In most states, including Oregon, these plans are relatively weak and lack leverage to enforce compliance. Since water quality standards must be achieved in the Willamette, any shortcoming in the § 319 plans tends to result in tighter controls on point sources.
The CWA imposes compliance with water quality standards on other projects through the § 401 certification process. When an applicant is seeking a federal license or permit to conduct any activity that may result in discharge of pollutants to surface water, § 401 requires the applicant to obtain a certification from the state that the project will comply with water quality standards and other CWA requirements. Section 401 certifications are most common in the context of US Army Corps of Engineers (Corps) dredge and fill permits and FERC dam licensing. But the requirement can be invoked for the full range of projects requiring some federal authorization.
Another very powerful feature of the CWA is the requirement to obtain a permit from the Corps under § 404 for any project involving dredging or filling within navigable waters. While seemingly narrow on its face, § 404 has taken on a very broad and influential scope. The Corps has extended the requirement to filling of wetland areas, which has been the source of apparently endless litigation over what does and does not fall within the CWA’s jurisdiction. In the Willamette River, 404 permits are required for proposed dredging projects, development projects and for state-led remedial actions. Because 404 permits are a federal action, they also trigger consultation requirements under the ESA (discussed below).
One highly influential aspect of the CWA is that citizens can act as private attorney generals to enforce the act against point source dischargers and EPA under § 505. In Oregon, groups such as Northwest Environmental Advocates, Northwest Environmental Defense Council and Willamette Riverkeepers have used this citizen suit capability to challenge EPA’s approval of Oregon’s water quality rules and to force changes at individual facilities. These same organizations also challenge DEQ’s issuance of NPDES permits from time to time. Due to the limits of the citizen suit authority and the lack of permit requirements for non-point sources, the weight of this citizen activism bears almost entirely on industrial and municipal point sources.
ENDANGERED SPECIES ACT
The ESA is playing an ever-increasing a role in the regulation of surface water. Nowhere is this more apparent than in rivers in the Pacific Northwest as a result of the listing of certain salmonid species as threatened or endangered. Following the listings of the Upper Willamette River steelhead and Upper Willamette River chinook salmon as threatened under the ESA, NOAA Fisheries designated the portions of the Willamette River and its tributaries as critical habitat for both species. This designation was invalidated by a legal challenge based on shortcomings in the economic analysis. National Association of Homebuilders v. Evans, Civ. No. 00-2799. NOAA Fisheries is in the process of redesignating portions of the Willamette River system as critical habitat for both steelhead and chinook salmon, but this process is being held up by open questions in the underlying listings, including how hatchery stocks should be included in and protected as part of the listed populations. In addition, following the listing of the bull trout as threatened, FWS proposed designating portions of the river and its tributaries as bull trout critical habitat, but issued a final designation that excluded the Willamette River basin on economic balancing grounds. The Alliance for the Wild Rockies and Friends of the Wild Swan recently sent FWS a 60-day notice letter indicating an intent to bring a citizen suit against the agency with respect to this decision. While the Willamette River will undoubtedly remain a focal point for critical habitat designation efforts in the future, the fact remains that many listed species are present throughout the basin and their presence triggers ESA requirements with or without critical habitat designations in place.
The ESA typically is invoked for the Willamette through one of two channels. The first is any action involving a decision by a federal agency (§ 7 consultation). The second is citizen suits to enforce the act.
Under § 7 of the ESA, federal agencies must consider the possible effects of their decisions on the survival of listed species. This requirement applies to direct agency action, funding decisions and authorization of action by others (such as the issuance of permits). Almost any activity conducted in or around the Willamette River has the potential to affect listed salmon species or their habitat in some way—beneficial or adverse. A federal agency with a role in such activities must determine whether the federal action may affect, directly or indirectly, a listed species or critical habitat. If the agency makes a "may affect" determination, the agency must determine whether formal consultation with NOAA Fisheries and/or FWS is necessary. A conclusion that formal consultation is not necessary because the action is "not likely to adversely affect" listed species can be reached either through informal discussion with the agencies or through the preparation of a biological assessment with concurrence from the applicable fish and wildlife agency.
If formal consultation is triggered, the consulting agency has 90 days to prepare a biological opinion and to determine whether the effects of the action are "likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of a critical habitat." If the consulting agency determines that jeopardy is likely, the agency must suggest "reasonable and prudent alternatives" to the proposed action that would not result in jeopardy. ESA § 7(b)(3).
These consultations can take a very long time and add a year or more to the schedule for the proposed action. Consultations also can be scientifically challenging and involve polarized positions. NOAA Fisheries and FWS may view their charge as principally to protect listed species and typically give economic or practical consequences less weight. If critical habitat is eventually designated for steelhead, chinook salmon, or bull trout in the basin, this challenge will become even more daunting in light of the Ninth Circuit’s recent opinion in Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F3d 1059 (9th Cir 2004), amended by 2004 WL 2435506 (9th Cir Oct 28, 2004), which holds that NOAA Fisheries and FWS must address recovery, and not just survival, in the context of a section 7 consultation on a proposed action that may affect designated critical habitat. As a practical matter, the case underscores the importance of demonstrating on the administrative record for section 7 consultations that a proposed action would not appreciably diminish the value of critical habitat for either survival or recovery of listed species.
Like the CWA, the ESA authorizes citizen suits for its enforcement. Environmental activists often incorporate both ESA and CWA citizen suit claims into their complaints. Again, these citizen suits, and the threat (or even the risk) thereof, shape activities throughout the Willamette basin.
The role of CERCLA in the Willamette River has increased dramatically since EPA listed the Portland Harbor area on the National Priorities List as a Superfund site. The Portland Harbor site is familiar to most readers because so many readers are involved in the site either as property owners, consultants or attorneys. Certainly, CERCLA and EPA’s influence through the CERCLA process will have a significant effect on the short stretch of the Willamette River that is within the Superfund Site. The environmental investigation of this site already has consumed millions of dollars—millions more if one considers the expenditures by each potentially responsible party on its own consultants and attorneys. The CERCLA process, however, is very inefficient, in some part due to its joint and several liability scheme and in some part to its emphasis on process. Dollar for dollar, the Portland Harbor cleanup is likely to have a relatively insignificant effect on the overall ecology of the river compared to actions under the three other regulatory programs profiled in this section.
In the context of this examination of the range of environmental laws affecting the Willamette, CERCLA is unique in its mandate to incorporate other laws. Under CERCLA § 121(d)(2)(A)(ii), CERCLA remedies are required to attain applicable and relevant and appropriate requirements (ARARs) from other laws, specifically including CWA water quality standards. Local land use laws also are ARARs. Although CERCLA is clear that ARARs apply to EPA-selected remedies, how the ARARs apply is often a point of confusion. For example, remedies must comply with water quality standards in the surface water, but the debate continues as to whether they reasonably can be applied to the pore water (the water in the sediment interface between river water and surrounding groundwater). CERCLA specifies that EPA should consider the purpose for which the criteria were developed in determining how to apply them and many, if not most, water quality standards were not developed with protection of benthic organisms in mind. Millions of dollars could turn on the resolution of this one debate, just in the Willamette River.
Possibly, even more so than CERCLA, the Oregon Cleanup Law creates an intersection of the many other laws affecting the Willamette River. EPA’s CERCLA decisions are not subject to ESA § 7 consultation requirements, and EPA can waive CWA § 404 permitting requirements. DEQ-led cleanups, however, can run into significant challenges under these laws. For example, if a remedy involves excavation or capping in the Willamette River, the responsible party must obtain a § 404 permit from the Corps. Even if the project can proceed under a nationwide general permit, the Corps under most circumstances will still need to engage in a project-specific consultation pursuant to § 7 of the ESA. In their zeal to protect listed species, NOAA Fisheries and FWS can use the consultation process to attempt to mold the DEQ remedy selection into a habitat restoration project. While such goals are beyond their authority under § 7, they can attempt to leverage the threat of a jeopardy decision to extract more out of the project than simply cleanup. ODFW work in-water work requirements also may be considered relevant and appropriate requirements.
LOCAL LAND USE ORDINANCES
Sometimes overlooked in the quiver of environmental laws applicable to the Willamette, local land use ordinances have a profound effect on the river. Statewide Planning Goal 15 specifically addresses the Willamette River: "To protect, conserve, enhance and maintain the natural, scenic, historical, agricultural, economic and recreational qualities of lands along the Willamette River as the Willamette River Greenway."
Consistent with Goal 15, Portland and other local governments along the Willamette River have enacted greenway ordinances that overlay the underlying zoning. These greenway ordinances establish setback requirements for construction near the river and require preservation and enhancement of the shoreline. Goal 15 attempts to freeze development of the actual shoreline to a 1975 baseline. The Metropolitan Service District has pushed for similar mandatory development restrictions, but is now pursuing voluntary programs. Of course, all these requirements may be further complicated by the recent passage of Measure 37, which allows long-time property owners to seek compensation or waiver of land use requirements placed on their property since they acquired it (see Abel/Rudd, Insider #354).
Without even considering the many non-environmental laws, the range of environmental regulatory programs applicable to Willamette River activities is daunting. Moreover, rapidly advancing understanding of river ecology and rising pressure from environmental activists are increasing the complexity of these laws and their application. No handbook is available to pull all these requirements together and this survey-level article has only skimmed the surface. Determining what legal requirements will apply to a project requires a deliberate and comprehensive legal review. Short of such a review, possibly the best advice for a developer, municipality or industrial facility along the Willamette River—with so many laws and such little time!—is to avoid CERCLA, comply with the CWA, and consider ESA requirements early. Invoking Measure 37 may sidestep local land use laws.
FOR ADDITIONAL INFORMATION, CONTACT: Mark Morford, 503/294-9259 or email: JMMORFORD@stoel.com
Originally Published in Oregon Insider, Issue #357, December 1, 2004.