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Medford found liable for water treatment plant pollution

John MacDiarmid with Rogue Flyfishers picks up a rock out of the Rogue River near Medford’s wastewater treatment plant in this 2018 file photo. A federal judge ruled Thursday that pollution from the plant violated its Clean Water Act permit. [Mail Tribune / Jamie Lusch]

A federal judge has ruled that discharges from Medford’s sewage treatment plant into the Rogue River violated the city’s Clean Water Act permit.

Judge Michael McShane sided with water quality advocates Sept. 30 in U.S. District Court in Medford, ruling in favor of a magistrate judge's findings earlier this year that the city is liable for excess phosphorous and nitrogen levels that don’t meet Oregon Department of Environmental Quality standards, and that pollution is flowing downriver from the wastewater treatment plant off Kirtland Road.

Portland-based Northwest Environmental Advocates — aligned with a consortium of Southern Oregon fishing groups that included Rogue Flyfishers Association and retired Oregon DEQ entomologist Rick Hafele — filed suit against the city in May 2018 on claims that the nutrients in the treated wastewater plant were causing a host of water quality issues.

The judge’s ruling did not touch on remedies or allegations that the city failed to take “all reasonable steps” to mitigate the pollution.

For John MacDiarmid with Rogue Flyfishers, who for more than a decade has advocated for water quality and seen the environmental impacts first hand on the river, the ruling was “just a statement of the obvious.”

“It’s obvious to us, but we’re not lawyers — just anglers that love the river and want future generations to enjoy it as much as we do,” he said.

Since 2011, MacDiarmid has worked with multiple fishing organizations to fund independent studies after Oregon DEQ allowed the treatment plant to keep discharging into the river.

MacDiarmid said he was initially concerned with the temperature of the water, but Hafele’s studies quantified new concerns. In a riffle upstream from the treatment plant, entomologists counted nine different species of stoneflies.

In a riffle downstream from the treatment plant, entomologists counted only one species.

After the study, it was “somewhat out of our hands” until the NWEA got on board. MacDiarmid praised the efforts of NWEA Executive Director Nina Bell.

In a phone interview, Bell said the agency is still weighing its next steps in the case, but called the unresolved claims “not the most important part of the case.”

“Removing the nitrogen and phosphorous is the central issue,” Bell said.

NWEA’s lawsuit cited three studies dating back to 2013 — one of them a city of Medford study — to illustrate alleged environmental impacts downstream of TouVelle State Park, including excessive nutrients that damaged underwater insect habitats and caused excessive “nuisance algae.”

“That’s an indicator of an unhealthy river,” Bell said.

The suit also claimed that the pollution harmed the aesthetics of the river, including what NWEA witnesses described as a ”visible plume“ and ”foul odor“ allegedly originating from the plant.

The judge’s decision was years in the making. Fishing organizations such as Rogue Flyfishers sponsored a study conducted by Hafele, a retired Oregon DEQ entomologist and fly-fishing author, in early 2013.

Hafele’s study looked at insect and plant life beyond a 300-foot stretch of the treatment plant’s discharge pipe, according to February 2013 news reports.

Subsequent studies from DEQ and the city’s own consultants confirmed the results, according to the NWEA. Because DEQ and the city failed to act after the studies, the NWEA sued the city in May 2018.

The NWEA lawsuit at one point sought damages of $54,000 per day, but the court later separated the “liability” portion of the lawsuit from the “remedy” portion.

In June, U.S. Magistrate Judge Mark D. Clarke weighed in on the “liability” portion of the lawsuit with a 20-page report. On Sept. 30, Judge McShane agreed, solidifying the ruling.

Clarke determined that the city violated terms of a “permit shield” within the treatment plant’s DEQ permit because the permit only allows for wastes or activities that contribute to degraded water quality at a designated “mixing zone” roughly 100 to 300 feet downriver from the plant.

Clarke noted that the city had stipulated with the NWEA that the facility discharges contributed to “exceedances of Oregon’s biocriteria standard.”

The city did not stipulate to the “magnitude or geographic or seasonal extent” of those exceeded standards, nor has the city stipulated that the exceeded standard “constitute a violation of the permit or that it has violated the permit in any other way,” Clarke stated in June.

Based on the city’s stipulation and “plain language” in the state standard, however, the court found that the city was in violation.

Clarke did not weigh in on the violation’s impacts, claiming that “a dispute of material fact” prevented him from siding one way or another.

For instance, the NWEA cited multiple declarations from witnesses regarding “foul” odors coming from the wastewater entering the river.

The city stated that the final step in the sewage treatment process should have left the wastewater with, at worst, a slightly “bleachy” or “clean” smell.

“Defendant (the city) claims that there are, however, potentially ‘foul’ odors in the area other than the facility’s discharge to the river,” Clarke’s findings state. “These include livestock on farms adjacent to the river and odors from operations at the facility itself that are not associated with the treated wastewater discharge to the river.”

Court records show that the parties have 30 days to consent to a trial for the unresolved claims. Bell said that her organization is still weighing their options.

The lawsuit has already impacted the treatment plant’s permit approved Aug. 10 and made effective by DEQ Sept. 1, according to Bell. Her organization, however, is critical that the city has until September 2035 to comply with the phosphorous limit.

“The fact that we’re even at this point is owing to citizens, not the DEQ,” Bell said.

According to Clarke’s findings, capital costs to bring the treatment plant into compliance range from $65.9 million and $182.9 million, and annual operating costs of $1.62 million to $2.91 million.

The case is not the first time the NWEA has taken DEQ to task. The organization settled with DEQ in Multnomah County Circuit Court in November 2018 surrounding an extensive backlog of permits that lapsed and went unrenewed. As terms of the settlement, DEQ is now on a 10-year program to resolve the backlog.

Reach web editor Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTwebeditor.