Earthrise recently achieved an important interim victory in our ongoing lawsuit, on behalf of Northwest Environmental Advocates (NWEA), aiming to reduce nutrient pollution in the Rogue River from the City of Medford’s regional water reclamation facility.
The suit alleges that Medford's discharges violate Oregon’s narrative “biocriteria” water quality standard. This provision requires all waters of the state to “be of sufficient quality to support aquatic species without detrimental changes in the resident biological communities.” The Oregon Department of Environmental Quality (DEQ) most commonly defines “detrimental changes” in terms of the loss of macroinvertebrate abundance and diversity as compared to an unimpaired location in the same watershed or region.
The suit has its origins in a series of studies dating back to 2012 that documented the adverse changes to the Rogue River ecosystem downstream from Medford’s treatment facility in Crown Point, Oregon. The first of these studies was prepared by aquatic biologist Rick Hafele, who is now our expert witness in the case. The study described the proliferation of nuisance algae and a significant decline in the native macroinvertebrate community below the Medford facility’s outfall. Later studies prepared by DEQ and consultants retained by Medford did not dispute these findings, and shortly following the close of discovery in the suit Medford agreed to stipulate that its discharges “cause or contribute to” in-stream violations of the biocriteria standard. Despite this admission Medford asserted several affirmative defenses, including a “permit shield” defense that was the subject of summary judgment briefing.
On September 30, 2021, Judge Michael J. McShane of the U.S. District Court for the District of Oregon granted in part Earthrise’s motion for summary judgment, adopting an earlier ruling from Magistrate Judge Mark D. Clarke finding Medford liable under the Clean Water Act for contributing to in-stream violations of Oregon’s “biocriteria” water quality standard, and holding that Medford was not entitled to a permit shield defense. Two other claims were not resolved on summary judgment, nor was the remedy for Medford’s biocriteria violations.
The litigation against Medford has also finally stirred DEQ into action. The agency for years had declined to address Medford’s ongoing nutrient pollution problems, citing a purported “lack of information” about the causes of the biocriteria impairment in the Rogue River. But in August 2021 it reissued Medford’s NPDES Permit with first-ever effluent limitations for phosphorus and nitrogen. Still, Earthrise and NWEA believe the new permit is insufficient, and on October 10 filed a petition for reconsideration of the permit.
Regardless of whether the ultimate resolution to Medford’s nutrient pollution is found through the federal citizen suit or the state NPDES permitting process, the future is brighter for the Rogue River.
Earthrise attorneys Jamie Saul and Lia Comerford represent NWEA in this litigation.
