The Oregon State Legislature is considering legislation that would require public entities discharging stormwater into canals or other infrastructure belonging to special districts or local governments to obtain permission from the affected district or government and ensure the discharge complies with water quality standards. This proposed legislation reflects the growing prevalence of development in rural and agricultural areas and the resulting conflicts between stakeholders trying to encourage economic development and maintain the integrity of historic water uses.
The bill before the Oregon State Legislature (SB 866) requires that state agencies, special districts, and local governments (public entities): 1) take reasonable steps to ensure that stormwater discharge into the canals or infrastructure of a special district or local government complies with state water quality standards and the requirements of the Clean Water Act; and 2) obtain the permission of the affected entity before discharging stormwater into a special district or local government’s canal or other infrastructure.
If a public entity were to discharge stormwater without the required permission, it would be liable to the affected special district or local government for actual damages, losses, costs, and attorney fees resulting from the discharge. However, a public entity would avoid liability if: 1) the affected special district or local government refuses to grant its permission or grants but later revokes its permission; and 2) the discharging public entity devises a detailed plan for infrastructure improvements that would provide a method to convey and discharge storm water without affecting the water conveyance infrastructure or imposing additional liability on the affected special district or local government. The public entity must implement this plan within five years of discharging storm water without written permission, otherwise it would remain liable to the affected special district or local government for actual damages, losses, costs, and attorney fees resulting from the discharge.
This proposed legislation would go into effect upon passage; however, the provisions addressing permission to discharge and resulting liability would become operative on July 1, 2019.
If passed, this proposed legislation would be a major step in regulating stormwater in Oregon. Although its text creates new requirements only for public entities, its passage would cause a major shift in the regulation of stormwater at the state level, imposing broad liability on public entities who discharge unwanted and polluted water. If passed, this legislation would almost certainly generate court battles and perhaps inspire similar legislation in other states.
The Senate Committee on Environment and Natural Resources must move SB 866 out of committee and onto the Senate floor by April 18, 2017, and the bill must be out of the relevant house committee by June 2, 2017. The legislation must be approved by both chambers by July 10, 2017, when the 2017 regular legislative session ends. See, https://www.oregonlegislature.gov/calendar.
For more information about SB 866 and to track the bill’s progress in the legislature, see, https://olis.leg.state.or.us/liz/2017R1/Measures/Overview/SB866.
(Sarah J. Wightman)
