CRESWELL – The City of Creswell is in violation with the Oregon Department of Environmental Quality. Now, as the City stares down the barrel of a moratorium, it’s dukes up between the two entities, in what the city manager calls “a David-and-Goliath situation.”
In a nutshell, the DEQ has placed development restrictions on the west side of town until the deemed improvements to its wastewater systems are overhauled into compliance.
With limitations in place, development on the west side of town has come to a near standstill – a problem that City officials say could persist for seven years or more – with detrimental effects for the City, its citizens, its developers, and its future identity.
• The city planning commission must decline prospective new businesses.
• Affordable housing can’t be built.
• Developers either have to hit the road or pay extra to conduct business.
• Taxpayers should anticipate increased fees on their utility bills.
But the price tag and timeline to come into compliance are not achievable under any reasonable terms, according to city officials.
The DEQ is “creating an environment for the City of Creswell that is going to have long-term impacts way beyond the environmental issues they’re trying to solve,” City manager Michelle Amberg said. “They’re getting into our finances; they’re getting into our future; they’re getting into our planning; they’re getting into our economic development. It’s going to eventually fall into the pocketbooks of the citizens because we won’t be able to benefit from growth, and that’s not fair.”
The minutiae of the moratorium
Creswell has two wastewater systems. The east side is owned and operated by the owners of Emerald Valley Wastewater – a private system that is not impacted by the restrictions.
DEQ’s problem child is the west-side wastewater system, which is managed by the City. Its wastewater is discharged to an unnamed tributary of Camas Swale Creek during the winter months.
During the summer months, outflow from the City’s system is used for land application, which involves the spreading of biosolid – a product of the wastewater treatment process – on the soil surface or incorporating or injecting biosolids into the soil.
Amberg said the effluent goes to a 200-acre field in the summer because there is minimal water flow and movement in Camas Swale Creek during the summer months.
The City of Creswell has a National Pollutant Discharge Elimination System (NPDES) permit with the DEQ, the state agency responsible for restoring, maintaining, and enhancing the quality of Oregon’s air, land, and water.
These permits are required by the Federal Clean Water Act (CWA) and regulate wastewater discharge to ensure they are treated to meet state and federal standards developed to ensure that waterways are safe for swimming, drinking, and aquatic life.
When NPDES permits are violated by cities, DEQ staff and city officials will negotiate a Mutual Agreement and Order (MAO) which outlines settlement terms to remedy the permit violations.
Creswell’s violations & DEQ’s sanctions
The City’s increased base flows and the state’s and nation’s increasing regulations have caused Creswell’s treatment plant’s discharges to violate the NPDES permit levels during “certain weather events and certain times of year,” referring to the winter months when Creswell utilizes the Camas Swale Creek.
“We have a wastewater treatment plant that discharges to an unnamed stream that has very low flows, so there is no way we can ever meet the discharge requirements for such a small body of water,” Amberg said. “(DEQ) changed the amount of outflow that we can have into the stream, which makes it difficult for us because we were always operating, within our old MAO, we were well under the limits so we were doing a great job. But now they’ve changed the limits to where we will probably be in violation off and on from now on.”
Violating its permit requirements is not new for Creswell. The City was issued an MAO in December 1998 prior to the one on March 8 because the City’s wastewater treatment facility was not capable of consistently complying with the limitations established in the City’s permit. This is due to the size of the Camas Swale Creek and its inability to manage the growing city.
Now 25 years later, Creswell finds itself in a similar scenario, except now there are greater ramifications and harsher limitations.
While City staff – and some community members – believe the DEQ’s sanctions are too overbearing, DEQ said it is “open to additional conversation if (the City) wants to change the terms of the agreement.”
“We did try to negotiate better terms, and (DEQ) just wouldn’t budge,” Amberg said. “There was no negotiation. They just said no, and they didn’t care about the impact (it would have on the City).”
City planner Curtis Thomas said the City has noticed rules consistently getting stricter.
“We’re little Creswell fighting against DEQ, who’s being backed by the Environmental Protection Agency,” Thomas said.
The City now finds itself in a moratorium on development for the land on the west side of I-5, which lies within City limits. The moratorium issued by DEQ was enacted on July 12, but the moratorium’s period of effectiveness – 120 days – did not begin until the corrective program was adopted on Aug. 14.
“A moratorium, under the state law, allows a city to restrict the issuance of building permits due to a lack of public facility capacity,” said Ross Williamson, the City’s legal counsel. “If you want to break that down even further, it’s the City’s ability to limit development because of a lack of sewer, water, or public facilities.”
The compliance schedule
The City is now bound to a compliance schedule for collections and treatment system improvements, harsher requirements for effluent limitations, and firm limits on the allowance of new connections to the City’s sewer system.
The compliance schedule lists how many new connections the City will earn after completing each compliance task, totaling 110 new connections it can potentially earn. However, the City has speculated that it could take about seven years to complete the tasks because it will need to be funded by grants, which take time and staff resources to complete. During those projected seven years, the City will not be able to add new development to the City beyond the MAO’s restrictions.
The DEQ declined to comment on a speculated timeline beyond what is outlined in the MAO, which states the last requirement of the collection system improvements, which must be completed before the treatment system improvements, must be completed by February 2029.
The first task within the collection system improvements was for the City to submit a report that it had completed smoke testing. This smoke testing is a way to find leaks. Smoke runs through the pipes, and if smoke seeps up through it, that spot is noted so it can be fixed. The City completed this, earning 15 hookups.
City staff have said that while it would be ideal to move through the compliance schedule as quickly as possible, the faster the City goes through the list, the more expensive it is to complete the task.
“It’s accelerated some of the work on our wastewater collection system to bring that up to date. It gave us more work within the collection system than we normally would have scheduled as such a condensed timeline,” public works director Cliff Bellew said. “We’re just prioritizing our work differently and working on it more than we normally would have, so some of our other projects are on the backburner (like maintenance work to the water system), and we’re prioritizing that work that is required that we do.”
Creswell does not have the staffing available to reduce the time frame, and Amberg said she’s not interested in hiring people to accelerate that process just to terminate their position once everything is finished.
When comparing the DEQ-sanctioned effluent limitations given to Creswell in 1998 and 2023, the numbers are drastically different.
In 1998, Creswell was required to have a monthly average of 733 biochemical oxygen demand (BOD) pounds per day and 1,067 total suspended solid (TSS) pounds per day.
But in 2023, those limitations were severely reduced by DEQ and the city was limited to only 170 BOD pounds per day and 200 TSS pounds per day, according to Dylan Darling, DEQ public information officer.
BOD and TSS are common measurements of wastewater strength. These statistics, which dictate sewer rates, discern what is needed to filter out organic matter in wastewater.
To explain this clear difference in limitations 25 years later, Darling wrote that back in 1998, “DEQ’s policy was to provide cities with the most lenient limits. DEQ no longer provides interim limits in this manner because it did not incentivize cities to continue to make improvements to their system.”
The snowball effect
This limitation on new connections – meaning new property developments – severely limits the City’s ability to grow, which snowballs into various other concerns. The ramifications include:
The City is not able to carry out its strategic plan’s housing element.
“Maybe there’s places worse off than Creswell, so we’re not getting the attention that we think we deserve; even though it’s a priority here, there are bigger fish to fry sometimes,” Thomas said. “This just seems like a really big one because I’m counting 200 homes within the current growth boundary, and if we expand that urban growth boundary, that’s another 800 homes. That’s like 1,000 homes within the next 10 years that can’t happen, and it’s just crazy.”
Urban renewal is stalling due to lack of growth.
“Urban renewal is an important tool for economic development in Oregon. Through tax increment financing, urban renewal agencies can provide grants and other incentives to build infrastructure in support of community economic development activities,” the Oregon Economic Development Association wrote.
A halt in building essentially puts a halt on urban renewal, and Thomas pointed out that, after starting the program in 2021, Creswell will miss out on quite a few years of urban renewal.
New development is incredibly limited and difficult.
Nathan Marple, owner of Nathan Marple Excavation, said his whole business relies on development in Creswell, and that “if there’s no development, there’s surely no work for us.
“It’s bad for Creswell, too, because they need to continue to bring in new development in order to keep the infrastructure up. That new development pays a lot of money to do all those things, and it’s tough,” Marple said. “This is really tough on the City because DEQ kind of just shut them off and said, ‘You have to fix this,’ and it’s really hard to fix something if you can’t bring any new money in. It’s not a good situation.”
Economic development will continue to take a big hit since new businesses cannot be connected to the system.
Thomas mentioned he has been turning away most potential development opportunities as he is unable to say “yes” to many projects due to the City’s restrictions.
“We have a McDonald’s coming up, but we also had a hotel and a convenience store and other things that add value to this district (which city planning had to turn away), and this just really hamstrings us,” Thomas said.
McDonald’s will be built on the west side of I-5, meaning it was a very rare showcase of new development being approved within the moratorium area.
The City is unable to benefit from low-income housing programs.
Amberg said the opportunity costs of what could be without the DEQ sanctions is high because the sanctions are causing “considerable harm beyond what the sewer system is about.”
“It harms our ability to take advantage of the low-income housing programs that are being supported by the state. We have people approaching us who want to put in apartment complexes, and it’s like, that’s just a non-starter,” she said. “Yet, that’s probably the affordable housing we need. We can’t build what we need because of this, and we can’t take advantage of all the programs that are coming out to assist with building housing.
System Development Charges (SDCs) are a key revenue stream from construction. A new home equates to $17,301 in SDCs, and finance director Jim Piper said the City, in recent years, typically builds 10 new single-family homes per year. With the City projecting about a seven-year moratorium, that’s a projected $1.7 million in lost revenue.
Amberg said the City is estimating the upgrade of the sewer plant will be about $25 million, which she said would fall on the 5,662 Creswell residents – not including those who live on the east side. The $25 million is an estimate based on costs of materials, supplies, labor, etc.
She also said residents should expect an increase in fees – even though water rates just increased 1%, sewer rose 5%, the public safety fee went up $1.18 this year, and there was also a $4 addition to the transportation utility bill.
“If people think their sewer bill is high now, wait until we have to do all this to be compliant,” Amberg said.
The blame game
Under the impression that, since Creswell has struggled with its sewer system for decades, the City should have anticipated DEQ’s sanctions, Andy Halvorson of Halvorson Construction called the moratorium a “devastating tragedy.”
“For the City to let down those many people, it’s pretty disappointing to me,” Halvorson said. “I think the worst part about it was: This isn’t ignorance. This isn’t something that they didn’t know about.”
Amberg said the City had been waiting for the DEQ to inform Creswell of certain data prior to its completion of an improvement to the sewer system. The study was to dictate whether the Coast Fork Willamette River had insufficient dissolved oxygen to support the fish, which is what DEQ is confidently stating. However, DEQ neglected to do this study.
“We followed all of the things that were outlined in the MAO to the best of our ability, but we couldn’t update our plant because we don’t know what the levels of oxygen are,” Amberg said. “It’s OK for them, it seems, to not do their work, but it’s not OK for us?”
Darling said the Coast Fork Willamette River is on a list of impaired waters in Oregon that has been approved by the EPA, and the impairment listed for this river includes dissolved oxygen.
“Even though DEQ has not completed a study on the river, it remains impaired, and that will not change unless something is done to address the amount of nutrients entering it.”
Although the moratorium has created tension between developers and City staff, Amberg said she understands their frustrations.
“Right now we have a person putting in a subdivision, and he has 27 houses planned, but we only have 15 hookups allowed. It impacts his pocket,” Amberg said. “He takes out a loan for construction for 27 houses and only builds 15. He either has to eat it, or those houses that he builds are going to be more expensive to pay off the loan. This hurts developers.”
The only loophole to not being able to hook up to the system is for a developer to put in a septic tank, which is costly and has its own environmental impacts.
“We try to get people off of septic tanks, not get on them,” Amberg said. “It’s really hard for our planner because people are constantly getting in touch with him to find out what building is like in Creswell, and he has to tell them, ‘Oh, we’ve got a moratorium so you have to put in septic tanks, and then once the moratorium is off and you can connect to the main line, you’re going to have to decommission the septic tanks and connect to the main line.’”
While some people blame the City for the moratorium, like Halvorson, others are blaming DEQ. The most vocal against DEQ is Amberg.
“It’s a David-and-Goliath situation, and I’m still looking for the rock,” Amberg said. “We’re really fighting a giant bureaucracy that’s unwilling to take into consideration the impacts.”
DEQ would not comment on who is responsible for the moratorium.
One solution is to move through the DEQ’s sanctions as quickly as possible in order to allow for the limitations to cease to exist, upgrading Creswell’s current system. However, the quicker the City moves through the list, the more expensive the process will be because applying for grants to offset the costs takes time and engineering.
Another solution is to join Eugene and Springfield’s wastewater system through a time-consuming process – which will probably take years as the cities involved jump through bureaucratic hoops – but it would stop Creswell from worrying about the issues that have come with discharging into Camas Swale Creek now and into the future.
“The county is interested in extending some wastewater lines down to Goshen and Short Mountain Landfill. If they go to the landfill, we actually have pipe that goes across the freeway from it,” Amberg said. “If we could just get under the freeway and connect to the system, then we wouldn’t have to worry about treatment in the future. They have a long bureaucratic process they have to go through, though. There’s a lot of steps, and that’s probably going to take years, so it’s not a quick fix.”
Although Amberg confessed that this solution is not feasible at the moment, she said “it may be a long-term solution for (Creswell) because we’re always going to bump up against the DEQ with this little stream (Camas Swale Creek) – and as we grow, it’s only going to get harder.”
The City is working through DEQ’s sanctions and discussing how to edit its master plan in order to move forward, but this will be a slow process.
As far as the moratorium goes, ORS 197.530 states criteria the City must follow in order to extend the moratorium, which it can do legally up to three times, therefore allowing a City’s moratorium to last for two years.
However, the legislature does not forbid a City from, after using all its extensions, starting from scratch and enacting a new moratorium.
“There’s probably an argument that a City could enact a new moratorium after the extensions have gone. Basically, you start over if the problem has not been fixed with that particular public service,” Williamson said. “Generally speaking, any city faced with the situation where a fix is long term rather than short term, I think there is an argument under the statute that you could just start again.”
Williamson used the City of Banks as an example. Banks’ moratorium was declared on Dec. 11, 2018, and it ended on March 8, 2022; Banks’ moratorium lasted three years and 87 days.
City council will be discussing the potential of re-establishing the moratorium at its Dec. 11 meeting with just one day to spare before the 120th day.