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Portland Water Bureau

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History of Portland's Legal Challenge

Portland filed a legal challenge to the LT2 rule in 2006 which was rejected by the courts in 2007. 

In January 2006, shortly after the federal Environmental Protection Agency (EPA) issued the final Long Term 2 Enhanced Surface Water Treatment Rule (LT2), Portland filed a legal challenge to the rule in the United States Court of Appeals for the District of Columbia Circuit (Court). In its records review challenge, Portland requested that the requirements of LT2 for water systems to cover or treat open reservoirs and for unfiltered water systems to provide treatment to address Cryptosporidium be invalidated (vacated) by the Court.

New York City joined Portland in the legal challenge as an intervenor. Additionally, Walla Walla, Washington filed a supporting amicus brief as did Oregon Wild and the Oregon Chapter of Physicians for Social Responsibility in a joint amicus brief.

Portland Water Bureau staff worked with the Friends of the Reservoirs, the Portland Utility Review Board and the Large Water Users Coalition to select Foley Hoag LLC as the legal firm to conduct the case. Representatives from these stakeholder groups worked with bureau staff throughout 2006 to help identify documents and other relevant information for the legal team to address in its petition.

Portland’s final petition brief was filed in December of 2006. The intervenor and amicus briefs were filed shortly afterward. EPA filed a response brief in February 2007 and Portland and New York City submitted their final response briefs to the Court in March of that year.

The Court heard oral arguments in the case on September 25th, 2007. The court panel consisted of Judges Ginsburg, Senetelle, and Tatel.

On November 6th, 2007 the Court issued its decision rejecting Portland’s challenge in which Judge Tatel concluded “Portland’s and New York’s attacks on this rule-making are all either inaccurate, irrelevant, or both.”

All relevant court documents related to Portland’s challenge, including the final Court decision, are available through the links below.

City of Portland Petitioner's Brief to Washington, DC District Court of Appeals

Filed December 4, 2006

Oregon Wild and Physicians for Social Responsibility Joint Amicus Brief

Filed December 19, 2006

Walla Walla Washington Amicus Brief

Filed December 19, 2006

Intervenor Brief filed by New York City

Filed December 19, 2006

Respondent Brief: Environmental Protection Agency

Filed February 2, 2007

New York City Reply Brief

Filed March 6, 2007

City of Portland Reply Brief

Filed March 27, 2007

Decision from the U.S. Court of Appeals

November 16, 2007