2020 Environmental Law: Year in Review Cosponsored by the Environmental & Natural Resources Section Thursday, October 8, 2020 8:30 a.m.–4:40 p.m. 6 General CLE credits and 1 Ethics (Oregon specific) credit 2020 ENVIRONMENTAL LAW: YEAR IN REVIEW SECTION PLANNERS Maura Fahey, CLE Chair, Crag Law Center, Portland Alia Miles, Oregon Department of Justice, Portland Kate Moore, Dunn Carney LLP, Portland Ilene Munk, Foley & Mansfield PLLP, Portland Stephanie Regenold, Perkins Coie LLP, Portland Ryan Shannon, Center for Biological Diversity, Portland Avalyn Taylor, Attorney at Law, Portland OREGON STATE BAR ENVIRONMENTAL & NATURAL RESOURCES SECTION EXECUTIVE COMMITTEE Sarah R. Liljefelt, Chair Maura C. Fahey, Chair-Elect Kate LaRiche Moore, Past Chair Caylin Joy Barter, Treasurer Ashley M. Carter, Secretary Dominic M. Carollo Michael C. Freese Sara Ghafouri Kirk B. Maag John R. Mellgren Alia S. Miles Ilene M. Munk Stephanie M. Regenold Ryan Adair Shannon Mark P. Strandberg Avalyn Taylor Christopher B. Thomas The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2020 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 2020 Environmental Law: Year in Review ii TABLE OF CONTENTS Schedule. v Faculty. .vii 1. Crystal Balls and Tea Leaves: NEPA Implementation in a Changing Landscape . 1–i — Susan Jane Brown, Western Environmental Law Center, Portland, Oregon — Elizabeth Rosso, Jordan Ramis PC, Portland, Oregon 2A. The Klamath Basin: Intersection of the Endangered Species Act and Tribal Water Rights. 2A–i — Thane Somerville, Morisset Schlosser Jozwiak & Somerville, Seattle, Washington 2B. Presentation Slides: Deschutes Basin Habitat Conservation Plan—ESA Issues in Water Management . 2B–i — David Filippi, Stoel Rives LLP, Portland, Oregon 3A. Presentation Slides: Superfund Legal Update. 3A–i — Ashley Carter, Portland Office of City Attorney, Portland, Oregon 3B. Presentation Slides: Resolution of Environmental Contamination Disputes . 3B–i — Mark Schneider, Perkins Coie LLP, Seattle, Washington 4A. Presentation Slides: Forest Litigation and Policy Review . 4A–i — Ralph Bloemers, Crag Law Center, Portland, Oregon 4B. Amendments to the Eastside Screens Governing Federal Forest Management . 4B–i — Sara Ghafouri, American Forest Resource Council, Portland, Oregon 5A. Presentation Slides: 1200-Z Industrial Stormwater Permit Rulemaking . 5A–i — Justin Green, Water Quality Division Administrator, Oregon Department of Environmental Quality, Portland, Oregon 5B. Presentation Slides: Draft 1200-Z Provisions . 5B–i — Stacy Hibbard, Environmental Program Manager, City of Portland, Portland, Oregon 6A. Hot Topics in Ocean Advocacy . 6A–i — Tara Brock, Oceana, Portland, Oregon 6B. Presentation Slides: Oregon and the Coastal Zone Management Act . 6B–i — Heather Wade, Coastal Policy Specialist and Senior Planner, State of Oregon, Salem, Oregon 6C. Presentation Slides: Floating Offshore Wind . 6C–i — Josh Franklin, Chief Development Officer, Progression Energy, San Diego, California 7. Ethics of Storytelling in Environmental Litigation . .7–i — Steve Johansen, Lewis and Clark Law School, Portland, Oregon 2020 Environmental Law: Year in Review iii 2020 Environmental Law: Year in Review iv SCHEDULE 8:30 Introductory Remarks Maura Fahey, CLE Chair, ENR Section Chair-Elect, Crag Law Center, Portland Sarah Liljefelt, ENR Section Chair, Schroeder Law Offices PC, Portland 8:40 Crystal Balls and Tea Leaves: NEPA Implementation in a Changing Landscape F July 2020 revisions to Council on Environmental Quality (CEQ) regulations implementing the National Environmental Policy Act of 1969 (NEPA) F The potential effects of these revisions on national forestlands F Filed and prospective litigation challenging CEQ and NEPA revisions F What the future holds for the two agencies promulgating these rules Susan Jane Brown, Western Environmental Law Center, Portland Elizabeth Rosso, Jordan Ramis PC, Portland 9:40 Transition 9:45 ESA Issues in Water Resources Management F Irrigation and water management and the impact on species listed under the Endangered Species Act F Intersection of the Endangered Species Act (ESA) and tribal reserved rights—Baley v. United States and Klamath Irrigation District v. Bureau of Reclamation F Ongoing effort by Deschutes Basin Board of Control and City of Prineville to develop a habitat conservation plan David Filippi, Stoel Rives LLP, Portland Thane Somerville, Morisset Schlosser Jozwiak & Somerville, Seattle 10:45 Transition 10:50 Superfund Legal Update and ADR Tools for Your Next Environmental Negotiation F Recent developments in Superfund law F Mediation and arbitration of multi-party environmental matters F Allocation factors unique to environmental disputes and presenting them during allocation and mediation Ashley Carter, Portland Office of City Attorney, Portland Mark Schneider, Perkins Coie LLP, Seattle 11:50 Lunch 12:20 Oregon Forest Law and Policy Update F Litigation updates and recent legal and regulatory changes to forest management of Oregon’s state, federal, and private forestlands F Amendments to the Eastside Screens governing federal forest management Ralph Bloemers, Crag Law Center, Portland Sara Ghafouri, American Forest Resource Council, Portland 1:20 Transition 2020 Environmental Law: Year in Review v SCHEDULE (Continued) 1:25 1200-Z General Permit Rulemaking F DEQ’s revised rulemaking for the NPDES 1200-Z stormwater general permit, process, and expected timeline F Draft provisions of the 1200-Z rulemaking F Water quality–based effluent limitations Justin Green, Water Quality Division Administrator, Oregon Department of Environmental Quality, Portland Stacy Hibbard, Environmental Program Manager, City of Portland, Portland James Saul, Earthrise Law Center, Portland 2:25 Transition 2:30 Ocean and Coastal Law: A Primer on Governance, Wind Development, Fisheries, and Pollution F Fisheries management and plastics pollution F Overview of Oregon’s ocean and coastal regulatory program F Regulatory framework that applies to offshore wind development Tara Brock, Oceana, Portland Josh Franklin, Chief Development Officer, Progression Energy, San Diego Heather Wade, Coastal Policy Specialist and Senior Planner, State of Oregon, Salem 3:30 Transition 3:35 The Ethics of Storytelling in Environmental Advocacy F How strong advocacy can inadvertently cross ethical lines F Examples of ethical and unethical interactions with a fact finder or regulator F ORPC rules 1.6, 3.3, 4.1, and 8.4 Steve Johansen, Lewis and Clark Law School, Portland 4:35 Closing Remarks Maura Fahey, CLE Chair, Crag Law Center, Portland 4:40 Adjourn 2020 Environmental Law: Year in Review vi FACULTY Ralph Bloemers, Crag Law Center, Portland, OR. Mr. Bloemers cofounded Crag Law Center in 2001. He has developed a specialty in public lands and natural resources law and has worked with dozens of clients throughout the Pacific Northwest since Crag’s founding. Tara Brock, Oceana, Portland, OR. Ms. Brock has worked on a variety of ocean and coastal issues over the last ten years, including plastic pollution, marine spatial planning, habitat protection and fisheries management. Prior to joining Oceana she worked at The Pew Charitable Trusts leading campaigns on ocean and coastal issues by providing legal analysis and policy development, stakeholder engagement, and legislative strategies. Susan Jane Brown, Western Environmental Law Center, Portland, OR. Ms. Brown is a nationally recognized expert on forest law. She has been appointed by the Secretary of Agriculture to co-chair the Federal Advisory Committee on the National Forest Management Act. She is a recipient of the Wilburforce Foundation’s Conservation Leadership Award, honoring her years of hard work protecting wildlife and wildlands in the western United States and recognizing her outstanding leadership in the conservation movement. She also served as executive director of the Gifford Pinchot Task Force from 2000-2003. Ashley Carter, Portland Office of City Attorney, Portland, OR. Maura Fahey, Crag Law Center, Portland, OR. Ms. Fahey’s docket consists of a variety of work including land use challenges in Oregon and Washington, Clean Water Act enforcement and federal public lands law. She serves on the Executive Committee of the Environmental & Natural Resources Section of the Oregon State Bar. David Filippi, Stoel Rives LLP, Portland, OR. Mr. Filippi’s practice includes natural resources, environmental and land use law, and concentrates on water rights and water quality, fish and wildlife law, hydropower relicensing, and project facility siting and permitting. He has been closely involved in the development and implementation of numerous Endangered Species Act compliance strategies on behalf of both public and private clients. Josh Franklin, Chief Development Officer, Progression Energy, San Diego, CA. Sara Ghafouri, American Forest Resource Council, Portland, OR. Ms. Ghafouri joined AFRC after practicing almost three years as an associate at Haglund Kelley LLP. During her time at Haglund Kelley, she focused her practice on complex civil litigation, environmental and natural resources law, and Indian law. She is a board member and advocacy co-chair