NEDC Oregon DEQ Lawsuit

1
6 IN THE CIRCUIT COURT OF THE STATE OF OREGON
7 FOR THE COUNTY OF MULTNOMAH
8 NORTHWEST ENVIRONMENTAL Case No.

DEFENSE CENTER, an Oregon non-profit
9
corporation, PETITION FOR DECLARATORY RELIEF
10
Petitioner, (Oregon Administrative Procedures Act,
11 ORS 183.484)
12 v.
13 OREGON DEPARTMENT OF
ENVIRONMENTAL QUALITY and LEAH
14
FELDON, in her capacity of Director of the
15 Department Of Environmental Quality,
16 Respondents.
17
18 INTRODUCTION
19 1.
20 This Petition is filed pursuant to the Oregon Administrative Procedures Act

21 (APA), ORS Chapter 183. Petitioner has filed this suit because Respondents have
22 violated state and federal law by issuing a Clean Water Act ("CWA") Section 401
23 Water Quality Certification ("Certification") for the Ross Island Sand & Gravel (“RISG”)
24 U.S. Army Corps of Engineers ("USACE") CWA Section 404 Permit No. 1999-1500,
25 as well as the Reclamation Plan incorporated into that Permit and also authorized by
26 the Oregon Department of State Lands ("DSL") Removal/Fill Permit No. 9819-RF
Page 1 - PETITION FOR REVIEW
LAW OFFICE OF KARL G. ANUTA, P.C.
TRIAL ATTORNEY
735 S. W. First Avenue
Portland, Oregon 97204
Phone 503.827.0320
1 Modified. The 401 Certification by Respondents was issued on October 13, 2022. The
2 Certification allows for the continued placement of fill into the part of the Willamette
3 River that is now the lagoon in the middle of Ross Island, by RISG. The Certification is
4 unlawful, because it fails to ensure that the water quality in the Willamette River will
5 be maintained during the reclamation activities by RISG under the USACE 404 Permit
6 (and the DSL R/F Permit).
7 PARTIES
8 2.
9 Petitioner Northwest Environmental Defense Center ("NEDC") is a 501(c)(3)
10 nonprofit organization registered in the State of Oregon with its principal place of
11 business located in Multnomah County, Oregon. NEDC was established in 1969 by a
12 group of law professors, law students and attorney alumni of Lewis & Clark Law
13 School. Its Mission is to protect the environment and natural resources of the Pacific
14 Northwest through legal advocacy, including citizen enforcement of the Clean Water
15 Act.
16 3.
17 Respondent Oregon Department of Environmental Quality ("DEQ") is an
18 agency of the State of Oregon with its principal place of business located in
19 Multnomah County, Oregon. Respondent Leah Feldon is the current director of DEQ,
20 and was the interim director of DEQ when the Certification was issued. Therefore, she
21 has the ultimate responsibility for the agency's actions. Pursuant to state and federal
22 law, Respondents are responsible for certifying that CWA § 404 Dredge and Fill
23 permits comply with Oregon water quality standards.
24 JURISDICTION AND VENUE
25 4.
26 Pursuant to ORS 183.484(1), jurisdiction and venue are proper before this
Page 2 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 Court because both Petitioner's principal place of business and Respondents, are in
2 Multnomah County. Pursuant to ORS 183.484(5), the Court has jurisdiction to issue
3 Petitioner's requested relief.
4 LEGAL BACKGROUND
5 5.
6 In 1972, Congress passed the CWA, 33 U.S.C. §§ 1251-1387. The CWA sets
7 a goal to restore and maintain the chemical, physical and biological integrity of the
8 Nation's waters. To meet this goal, the CWA instructs the states to establish water
9 quality standards applicable to the waters within their boundaries.
10 6.
11 Section 301 of the CWA, 33 U.S.C. § 1311, prohibits the discharge by any
12 person, except in compliance with, inter alia, a permit issued pursuant to 33 U.S.C. §
13 1344 (i.e. Section 404 of the CWA). Section 401 of the CWA, specifically 33 U.S.C. §
14 1341(a), provides that an applicant for a Federal license or permit that may result in a
15 discharge of pollutants to navigable waters must provide the permitting agency - in
16 this case, the U.S. Army Corps of Engineers - with a water quality certification "that
17 any such discharge will comply" with certain enumerated CWA provisions, as well as
18 with certain applicable effluent limitations.
19 7.
20 Pursuant to 33 U.S.C. § 1341(d) any 401 Certification "shall set forth any
21 effluent limitation and other limitations, and monitoring requirements necessary to
22 assure" that the applicant's discharges and other activities will comply with all
23 applicable state water quality standards and requirements set forth in the Certification.
24 Any requirement set forth in the 401 Certification "shall become a condition on any
25 Federal license or permit subject to [§ 401 Certification]."
26 ////

TRIAL ATTORNEY
Phone 503.827.0320
1 8.
2 Federal regulations, specifically 40 C.F.R. § 121.2(a)(3), require that a § 401
3 Certification must contain a statement that "there is a reasonable assurance that the
4 activity will be conducted in a manner which will not violate applicable water quality
5 standards".
6 9.
7 The CWA requires water quality standards to include three elements: (1) one
8 or more designated uses of a waterway; (2) numeric and narrative criteria specifying
9 water quality conditions which are necessary to protect those designated uses; and
10 (3) an antidegradation policy.
11 10.
12 33 U.S.C. § 1341(d) allows for the State to impose conditions on Certifications
13 insofar as necessary to enforce a designated use contained in the State's water
14 quality standards.
15 FACTUAL BACKGROUND
16 11.
17 RISG is authorized to conduct upland and in-water reclamation activities under
18 both USACE Permit No. NPW 1999-1500 and Oregon DSL Permit No. 9819-RF
19 Modified. Both permits allow for the continued reclamation activities, including the
20 development of shallow water habitat, emergent wetland, riparian and upland
21 habitats, as well as the stable capping of the Confined Aquatic Disposal Cells, within
22 the Ross Island lagoon. Reclamation activities, goals and procedures are articulated
23 in a 2002 Reclamation Plan, which is incorporated into both the 404 USACE Permit,
24 as well as the DSL Removal/Fill Permit.
25 12.
26 USACE Permit No. NWP 1999-1500 is issued pursuant to § 404 of the CWA.
Page 4 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 This 404 Permit was issued in 2007, for a term of 20 years. It authorizes the
2 placement of an unlimited amount of fill within the waters of the United States, in order
3 to conduct reclamation activities. Special Condition 5 of the 404 Permit requires
4 reclamation activities to be "undertaken in accordance with the specifications outlined
5 in the 'Ross Island Reclamation Plan' dated September 30, 2002" (hereinafter the
6 "2002 Reclamation Plan").
7 13.
8 Pursuant to the CWA, a 401 Certification, which certifies compliance with a
9 State's water quality standards must be issued before a federal § 404 permit can be
10 issued. This is true for the RISG USACE Permit No. NWP 1999-1500.
11 14.
12 General Condition 5 and Special Condition 3 of that Permit require a Water
13 Quality Certification from the Oregon Department of Environmental Quality. The terms
14 of the Certification are "terms and conditions of the [404] permit authorization."
15 15.
16 DEQ last issued a 401 Certification for USACE Permit No. NWP 1999-1500, on
17 February 21, 2017. That Certification had a term of five years. That Certification has
18 now expired.
19 16.
20 On August 2, 2022, RISG applied to renew the 401 Certification for this
21 USACE 404 Permit, in order to continue conducting upland and in-water reclamation
22 activities within the lagoon.
23 17.
24 The RISG 401 Certification application references and incorporates both the
25 2002 Reclamation Plan, as well as a proposed (but not yet approved) 2022 Adaptive
26 Management Plan (hereinafter "2022 AMP"). The 2022 AMP seeks to modify

TRIAL ATTORNEY
Phone 503.827.0320
1 procedures and outcomes in the 2002 Reclamation Plan.
2 18.
3 Oregon DSL will oversee the finalization of the 2022 AMP. The 2022 AMP will,
4 if approved as currently proposed, signficantly modify the reclamation procedures of
5 the 2002 Reclamation Plan. Since the 2022 AMP will modify the 2002 Reclamation
6 Plan, which is incorporated into the 404 Permit, any 401 Certification for that Permit
7 must address and evaluate the 2022 AMP and its likely effects on water quality in the
8 Willamette River.
9 THE CERTIFICATION AT ISSUE
10 19.
11 DEQ accepted the RISG application and request to issue a new 401
12 Certification. This Certification is necessary for continued compliance with the USACE
13 404 Permit.
14 20.
15 The permit application submitted by RISG, requesting a 401 Certification from
16 DEQ, identifies that turbidity and pH will be impacted during the placement of fill.
17 21.
18 A draft proposed 401 Certification was circulated by DEQ, who solicited
19 comments from the public, between August 19, 2022 and September 30, 2022.
20 Despite changes in the water quality of the Willamette River, in the area of Ross
21 Island, the draft Certification is not materially different than the previous DEQ 401
22 Certification for the RISG 404 Permit issued in 2017.
23 22.
24 The draft Certification contemplates potential water quality impacts from
25 RISG's placement of fill under the USACE 404 Permit, which incorporates the 2002
26 Reclamation Plan. In the application for the 401 Certification, RISG also cites to the
Page 6 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 2022 AMP, which seeks to modify the 2002 Reclamation Plan. The modifications in
2 the 2022 AMP as proposed would reduce the fill volume, and shift the placement of
3 the fill from the northern end of the lagoon to the southern end of the lagoon. The
4 effect of this shift would be to create more shallow water habitat within the southern
5 end of the Lagoon.
6 23.
7 By issuing a Certification for a 404 Permit that relies on the proposed 2022
8 AMP, DEQ has effectively certified that the 2022 AMP - and the reclamation goals
9 and procedures within it - will comply with Oregon water quality standards.
10 24.
11 During the public comment period, Petitioner pointed out that DEQ should not
12 grant, or should substantially modify, the 401 Certification because it was not
13 sufficient to ensure compliance with applicable water quality standards. During the
14 comment period Petitioner articulated numerous concerns with the Draft Certification,
15 all of which cast serious doubt on whether DEQ could rationally conclude that it had
16 "reasonable assurance that the activity would not violate water quality standards," as
17 required by 33 U.S.C. § 1341, 40 C.F.R § 121.2, and Oregon's water quality
18 standards.
19 25.
20 Petitioner also pointed out that DSL has yet to finalize the 2022 AMP. Because
21 the 2022 AMP and 2002 Reclamation Plan modifications were not finalized, and they
22 could significantly change, Petitioner noted that it was premature to incorporate and
23 rely on these plans in a 401 Certification. In addition, Petitioner identified numerous
24 existing water quality impairments that would be further degraded by the proposed
25 activities. Petitioner also pointed out how there was not sufficient analysis on impacts
26 to water quality by the permitted activity, and how the conditions proposed by the draft

TRIAL ATTORNEY
Phone 503.827.0320
1 Certification were actually insufficient to "ensure compliance" with water quality
2 standards, as required by state and federal law.
3 26.
4 DEQ did not respond substantively to Petitioner's comments, or change the
5 draft proposed Certification in any significant way.
6 27.
7 DEQ issued the 401 Certification on October 13, 2022, just two weeks after the
8 close of the commenting period. As far as Petitioner can tell, DEQ made no
9 substantive modifications to the Certification in response to public comments.
10 28.
11 As of the time of filing of this Petition, DSL has still not finalized and approved
12 the 2022 AMP or its modifications to the 2002 Reclamation Plan.
13 PETITION FOR RECONSIDERATION
14 29.
15 On December 12, 2022, within the time allowed by ORS 183.484, Petitioner
16 filed a Petition for Reconsideration asking that DEQ go back and take a more
17 thorough look at the 401 Certification issues. Among other things, Petitioner outlined
18 how the Certification, the draft Reclamation Plan relied upon therein, and the
19 conditions of the Certification could not ensure compliance with Oregon's water quality
20 standards.
21 30.
22 On February 9, 2023, Petitioner received DEQ's Order, denying the Petition for
23 Reconsideration. This Petition was timely filed withing 60 days of the issuance of that
24 Order, as required by ORS 183.484.
25 ////
26 ////
Page 8 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 THE WILLAMETTE RIVER
2 31.
3 The Willamette River is a 187 mile tributary of the Columbia River. The
4 Willamette has been classified by DEQ as water quality limited, with Total Maximum
5 Daily Loads for the parameters of dioxin, E.coli, and Mercury. The river has been
6 listed by DEQ as impaired for temperature, dissolved oxygen, biocriteria, Harmful
7 Algal Blooms, and cyanide, amongst other impairment pollutants. Impairment
8 pollutants limit and effect multiple beneficial uses of the Willamette, including
9 aesthetic water quality, fishing, public domestic water supply, water contact
10 recreation, fish and aquatic life.
11 ROSS ISLAND LAGOON
12 32.
13 The Ross Island Lagoon is located within the Willamette River, at River Mile
14 15. In the 1920s, two islands - Ross Island and Hardtack Island - were joined by an
15 earthen dike to form the lagoon. The main channel of the Willamette River runs to the
16 west of the lagoon, with the Holgate Slough portion of the river directly to the east.
17 33.
18 The mouth of the Ross Island Lagoon opens into the Holgate Slough portion of
19 the Willamette River. Temperature increases in the Lagoon at times cause Harmful
20 Algal Blooms ("HABs"). These HABs at times move from the Lagoon out into the rest
21 of Willamette River.
22 34.
23 HABs threaten multiple beneficial uses on the Willamette River. HABs in the
24 Ross Island Lagoon have become increasingly common. HABs affect the safety of
25 Willamette River users, and their pets, and well as the water quality of the Willamette
26 River. Attached as Exhibits #1 and #2 are photos of what a HAB in the Ross Island

TRIAL ATTORNEY
Phone 503.827.0320
1 Lagoon portion of the Willamette River looks like.
2 ROSS ISLAND RECLAMATION PLAN
3 35.
4 RISG mined the Lagoon from 1926 to 2001. RISG has been ordered to perform
5 Reclamation activity, which includes placing fill to reclaim the upland, wetlands and
6 in-water area that were previously mined by RISG.
7 36.
8 In 2002, reclamation goals and procedures were formalized in the 2002
9 Reclamation Plan. The 2002 Reclamation Plan has guided activities in the lagoon for
10 20 years.
11 37.
12 The 2002 Plan is incorporated into the USACE 404 Permit, which authorizes
13 placement of unlimited fill into the waters of the United States for 20 years.
14 38.
15 The USACE 404 Permit requires compliance with the 2002 Reclamation Plan.
16 39.
17 RISG has engaged in reclamation activity for over 40 years. Since 2007, RISG
18 has conducted fill placement pursuant to the 404 Permit and the incorporated 2002
19 Reclamation Plan. However, RISG is still a long way from completing the reclamation
20 required by the 2002 Reclamation Plan.
21 40.
22 The USACE 404 Permit specifies that reclamation activity should be completed
23 by December 31, 2034. This completion date is premised on an assumption that
24 RISG will be able to obtain and place fill at an average rate of 33,981 cubic yards per
25 year.
26 ////
Page 10 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 41.
2 Difficulty obtaining free fill has led to significant delays in completion of
3 Reclamation activities. It is unclear why RISG has not purchased clean fill sufficient to
4 stay on track to complete its Reclamation Plan requirements.
5 42.
6 RISG has submitted an application to Oregon DSL to modify the existing
7 Removal/Fill permit for reclamation of the Ross Island lagoon. The proposed changes
8 are reflected in the 2022 Adaptative Management Plan, which seeks to modify the
9 original 2002 Reclamation Plan. The modifications in the 2022 AMP ultimately seek to
10 dramatically reduce the amount of fill required to complete reclamation, from
11 1,061,132 cubic yards to 499,330 cubic yards. The modifications seek to achieve this
12 reduction by shifting the majority of the reclamation fill to the southern end of the
13 Lagoon.
14 43.
15 The 2022 AMP would result in more shallow water habitat within the Lagoon.
16 More shallow water will increase the water temperature of the lagoon and the
17 Willamette River. As noted, temperature increases will also cause HABs to proliferate.
18 The Willamette River has already been recognized by DEQ as impaired for both
19 temperature and HABs.
20 44.
21 If approved, the 2022 AMP will modify the 2002 Reclamation Plan. Because
22 the USACE 404 Permit incorporates the 2002 Reclamation Plan into the permit,
23 acceptance of the 2022 AMP effectively modifies the activity that is authorized under
24 the USACE 404 Permit.
25 45.
26 RISG's application for a 401 Certification includes references to the 2022 AMP.

TRIAL ATTORNEY
Phone 503.827.0320
1 46.
2 The 401 Certification incorporates the 2022 AMP and its modifications to the
3 2002 Reclamation Plan, into the Certification.
4 47.
5 However, as previously indicated, DSL has yet to finalize the 2022 AMP. A 401
6 Certification that integrates and relies on (and Certifies) an AMP that has yet to be
7 finalized by DSL, is premature.
8 48.
9 The terms of the 401 Certification and 404 Permit require RISG to submit
10 annual reports which include various details about the fill that RISG is using. RISG is
11 also required to submit cross sections and bathymetric surveys that document the
12 slopes created by placement of fill.
13 49.
14 Bathymetric surveys and cross section analysis submitted over the past five
15 years indicate that slopes created by the placement of fill have been eroding within
16 the Lagoon.
17 50.
18 Annual monitoring reports submitted over the past five years indicate
19 exceedances in turbidity beyond natural background levels during placement of fill.
20 51.
21 Despite documented instances in which RISG’s fill activities have further
22 degraded water quality, DEQ issued yet another 401 Certification - one that lacked
23 proper analysis on the permitted activity's impacts to water quality and proper
24 Conditions necessary to ensure that the proposed activities were not impairing water
25 quality in the Lagoon and/or in the Willamette River.
26 52.
Page 12 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 Moreover, the Certification incorporates the 2022 AMP, which seeks to create
2 more shallow water habitat, which will cause further increases in lagoon temperature
3 and most likely more frequent HABs. The Certification does not analyze how the
4 procedural modifications that are articulated in the 2022 AMP, and effectively
5 incorporated into both the 401 Certification and the 404 Permit, will affect water
6 quality in the Willamette River.
7 NATURE OF THE PETITIONER'S INTERESTS
8 53.
9 Petitioner has significant interest in: (i) the proper and expeditious reclamation
10 of the Ross Island Lagoon; (ii) the protection of water quality in the State of Oregon
11 for fish, aquatic life, recreation, and other beneficial uses; and (iii) Respondents taking
12 the necessary steps to ensure that any 401 Certification issued pursuant to the CWA
13 complies with both state and federal law.
14 54.
15 Petitioner has an interest in protecting and enhancing the waters of the state.
16 Petitioner's Mission as an organization is to protect and enhance the natural
17 environment of the Pacific Northwest. In furtherance of this Mission, Petitioner has for
18 over fifty (50) years spent many thousand of hours, much effort, and a portion of its
19 scarce economic resources, engaging in advocacy efforts to try to protect water
20 quality both in the Willamette River and throughout Oregon.
21 55.
22 Petitioner has an interest in ensuring that aquatic life, and aquatic life beneficial
23 uses are protected. Petitioner has spent time, effort and resources engaging in
24 litigation and other advocacy efforts that protect both aquatic species, as well as
25 protect the habitat which they depend on, in the Willamette River and throughout
26 Oregon. This has included past (and ongoing) lawsuits against DEQ, the

TRIAL ATTORNEY
Phone 503.827.0320
1 Environmental Protection Agency (EPA), and many Permitees or other dischargers of
2 pollutants, into the Willamette River and other rivers and lakes throughout Oregon.
3 56.
4 Petitioner has an interest in ensuring that water quality is sufficient to protect
5 recreational interests. Petition has spent decades engaging in advocacy to help
6 protect recreational values in the Willamette River and throughout Oregon.
7 HARM TO PETITIONERS INTERESTS
8 57.
9 Petitioner is adversely affected or aggrieved by Respondent's decision to issue
10 the challenged Certification. By issuing this Certification, despite the known RISG
11 impacts on water quality, DEQ has acted in a way that harms Petitioner's Mission. By
12 issuing this Certification, despite the known impacts on water quality, DEQ has acted
13 in a way that frustrates and diminishes the benefits of Petitioner’s past efforts to
14 protect the water quality of the Willamette River.
15 IMPROPER CERTIFICATION
16 58.
17 The 401 Certification is premature, as it Certifies compliance with water quality
18 standards for modifications to the 2002 Reclamation Plan that DSL has yet to finalize.
19 59.
20 The 401 Certification incorrectly asserts that activities authorized by the 404
21 Permit and its incorporated Reclamation Plan, will meet water quality standards. This
22 assertion is incorrect because the 2022 AMP, as it modifies the 2002 Reclamation
23 Plan, will most likely cause increases in the temperature in the Ross Island Lagoon
24 and the Willamette River. These temperature increases will further impair the river for
25 both temperature and HABs parameters. Further, the proposed activity has known
26 impacts on pH and turbidity. Temperature, HABs, pH, and turbidity are all parameters
Page 14 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 for which the Willamette is already impaired.
2 60.
3 The Certification contains no analysis on: (1) the activity's potential to affect
4 water quality; (2) how the modifications from the 2022 AMP will affect parameters for
5 which the river is already impaired; or (3) how the activity will affect beneficial uses.
6 Additionally, the Certification contains insufficient monitoring and analysis
7 requirements to document the likely effects of the activity that is being certified on
8 water quality in the Willamette River.
9 61.
10 The activity authorized by the USACE 404 Permit, which incorporates the 2002
11 Reclamation Plan, has known impacts to water quality. Modifications to the 2002
12 Reclamation Plan proposed by the 2022 AMP will exacerbate existing water quality
13 issues associated with the permitted reclamation activity.
14 62.
15 The Certification incorrectly concludes that the activity permitted will not harm
16 water quality. The Certification also incorrectly concludes that the permitted activity
17 will not impact beneficial uses. These conclusions are not accurate because the 2022
18 AMP as written, would create more shallow water habitat, thereby increasing the
19 lagoon temperature. In turn, HABs will proliferate.
20 63.
21 Respondents decision to issue the Certification, despite known and
22 documented detrimental impacts from the proposed RISG reclamation activities to
23 water quality, and absent conditions sufficient to avoid those impacts, is prohibited by
24 the CWA and its regulations.
25 ////
26 64.

TRIAL ATTORNEY
Phone 503.827.0320
1 The Certification does not provide adequate protection for existing and
2 designated beneficial uses of the receiving Oregon waters. The Certification and its
3 conditions do not provide adequate protection for Oregon waters, or ensure adequate
4 compliance with applicable provisions of state and federal law.
5 65.
6 Despite what Respondents knew or should have known about the likely water
7 quality impacts from RISG reclamation activities, and despite the existing HAB
8 impairment status, the Certification only requires RISG take "visual observations" and
9 notify DEQ if there are any HABs in the lagoon. The permitted activity, and its impacts
10 to HABs and water quality of the lagoon, will pose further threat to aquatic life uses
11 and contact recreation in the area. The permitted activity will likely cause or contribute
12 to exceedances of water quality standards intended to benefit aquatic resources of
13 the Willamette River.
14 66.
15 Oregon's Anti-degradation Policy, set forth in OAR 340-041-0004, is designed
16 to prevent further degradation of existing water quality to ensure the full protection of
17 all existing beneficial uses. Water Quality Limited waters, like the Willamette River,
18 may not be further degraded. While the Rules allow for temporary disturbances in
19 water quality, this activity at issue in this Certification is projected to take at least 14
20 years to complete. That is an extensive period of degradation of water quality that is
21 not consistent with the Policy.
22 67.
23 This Certification is in contravention of state and federal water quality
24 protection laws, is insufficient to protect aquatic resources and water quality, and is
25 harmful to the state and each of its citizens.
26 FAILURE TO COMPLY WITH STATE & FEDERAL WATER QUALITY LAWS
Page 16 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
1 68.
2 In issuing this Certification, Respondent acted in a manner inconsistent with
3 the law and/or in a manner unsupported by substantial evidence. Respondent's
4 conduct was contrary to law, erroneous, and otherwise unlawful in one or more of the
5 following ways:
6 (a) In erroneously concluding that DEQ is "reasonably assured" that the
7 implementation of the Reclamation Plan, including the modifications
8 proposed by the 2022 AMP, will be consistent with the CWA, with state
9 water quality standards in Oregon Administrative Rules Chapter 340
10 Division 41, and other appropriate requirements of state law;
11 (b) In erroneously issuing a 401 Certification that incorporates modifications
12 to a Reclamation Plan before that Plan has actually been finalized by
13 DSL;
14 (c) In issuing a Certification when Respondent knew or should have known
15 that the conditions specified in the Certification do not adequately
16 ensure compliance with applicable requirements of the CWA or its
17 implementing regulations.
18 REQUESTED RELIEF
19 WHEREFORE, Petitioner requests that this Court, exercising its authority
20 under ORS §§ 183.484, 183.486, and 183.497:
21 1. Declare that Respondents violated state water quality laws and/or the
22 Clean Water Act in issuing the Certification;
23 2. Set aside and remand Respondent's decision to issue the challenged
24 401 Certification;
25 3. Award Petitioner reasonable attorney's fees and costs; and
26 4. Award Petitioner such other relief as the Court deems just and

TRIAL ATTORNEY
Phone 503.827.0320
1 equitable.
2 Signed: April 10, 2023.

3 LAW OFFICE OF KARL G. ANUTA, P.C.
4
/s/ Karl G. Anuta
5 _________________________________
KARL G. ANUTA, OSB # 861423
6 735 SW First Avenue
Second Floor
7
8 Phone: (503) 827-0320
Fax: (503) 386-2168
9 [email protected]
10 Trial Attorney/Federal ID # 26-1488415
11
12
/s/ Mary Stites
13 _______________________________
Mary Stites, OSB #225005
14 Northwest Environmental Defense Center
15 10101 S. Terwilliger Blvd.
Portland, OR 97219
16 Telephone: (503)768-6747
[email protected]
17
Attorneys For Petitioner
18
19
20
21
22
23
24
25
26
Page 18 - COMPLAINT
TRIAL ATTORNEY
Phone 503.827.0320
NEDC v. DEQ Complaint Exhibit #1
NEDC v. DEQ Complaint Exhibit #2

NEDC Oregon DEQ Lawsuit

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1

6 IN THE CIRCUIT COURT OF THE STATE OF OREGON

7 FOR THE COUNTY OF MULTNOMAH

8 NORTHWEST ENVIRONMENTAL Case No.

20 This Petition is filed pursuant to the Oregon Administrative Procedures Act

6 (and the DSL R/F Permit).

9 Petitioner Northwest Environmental Defense Center ("NEDC") is a 501(c)(3)

11 business located in Multnomah County, Oregon. NEDC was established in 1969 by a

17 Respondent Oregon Department of Environmental Quality ("DEQ") is an

23 permits comply with Oregon water quality standards.

24 JURISDICTION AND VENUE

3 Petitioner's requested relief.

9 quality standards applicable to the waters within their boundaries.

15 discharge of pollutants to navigable waters must provide the permitting agency - in

18 with certain applicable effluent limitations.

21 effluent limitation and other limitations, and monitoring requirements necessary to

25 Federal license or permit subject to [§ 401 Certification]."

Page 3 - PETITION FOR REVIEW

2 Federal regulations, specifically 40 C.F.R. § 121.2(a)(3), require that a § 401

10 (3) an antidegradation policy.

12 33 U.S.C. § 1341(d) allows for the State to impose conditions on Certifications

13 insofar as necessary to enforce a designated use contained in the State's water

17 RISG is authorized to conduct upland and in-water reclamation activities under

20 development of shallow water habitat, emergent wetland, riparian and upland

24 as well as the DSL Removal/Fill Permit.

3 to conduct reclamation activities. Special Condition 5 of the 404 Permit requires

4 reclamation activities to be "undertaken in accordance with the specifications outlined

6 "2002 Reclamation Plan").

8 Pursuant to the CWA, a 401 Certification, which certifies compliance with a

12 General Condition 5 and Special Condition 3 of that Permit require a Water

22 activities within the lagoon.

Page 5 - PETITION FOR REVIEW

4 if approved as currently proposed, signficantly modify the reclamation procedures of

9 THE CERTIFICATION AT ISSUE

15 The permit application submitted by RISG, requesting a 401 Certification from

18 A draft proposed 401 Certification was circulated by DEQ, who solicited

22 Certification for the RISG 404 Permit issued in 2017.

24 The draft Certification contemplates potential water quality impacts from

5 end of the Lagoon.

17 required by 33 U.S.C. § 1341, 40 C.F.R § 121.2, and Oregon's water quality

23 rely on these plans in a 401 Certification. In addition, Petitioner identified numerous

Page 7 - PETITION FOR REVIEW

2 standards, as required by state and federal law.

4 DEQ did not respond substantively to Petitioner's comments, or change the

5 draft proposed Certification in any significant way.

9 substantive modifications to the Certification in response to public comments.

12 the 2022 AMP or its modifications to the 2002 Reclamation Plan.

13 PETITION FOR RECONSIDERATION

24 Order, as required by ORS 183.484.

6 listed by DEQ as impaired for temperature, dissolved oxygen, biocriteria, Harmful

7 Algal Blooms, and cyanide, amongst other impairment pollutants. Impairment

10 recreation, fish and aquatic life.

11 ROSS ISLAND LAGOON

Page 9 - PETITION FOR REVIEW

2 ROSS ISLAND RECLAMATION PLAN

6 in-water area that were previously mined by RISG.

8 In 2002, reclamation goals and procedures were formalized in the 2002

20 required by the 2002 Reclamation Plan.

23 by December 31, 2034. This completion date is premised on an assumption that

2 Difficulty obtaining free fill has led to significant delays in completion of

4 stay on track to complete its Reclamation Plan requirements.

6 RISG has submitted an application to Oregon DSL to modify the existing

10 dramatically reduce the amount of fill required to complete reclamation, from