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CITY OF EUGENE <br /> INTER - DEPARTMENTAL MEMORANDUM <br /> CITY ATTORNEY — CIVIL DEPARTMENT <br /> To: Jim Johnson Date: December 11, 2001 <br /> CMO <br /> Subject: Stormwater Discharges and CAFO Permit <br /> CONFIDENTIAL ATTORNEY /CLIENT COMMUNICATION — NOT <br /> SUBJECT TO RELEASE UNDER THE PUBLIC RECORDS ACT <br /> You have asked whether the City has the authority to prohibit discharges of contaminated <br /> stormwater into the Amazon Channel adjacent to Lane County Fairgrounds. More specifically, you <br /> have asked whether the Fairgrounds would be exempt from the City's stormwater prohibitions if the <br /> Fairgrounds obtained a permit from the state for a combined animal feeding operation (CAFO). The <br /> purpose of the CAFO permit would be to allow horses to use the Fairgrounds. For the reasons that <br /> follow, we conclude that the City possesses the authority to prohibit such discharges, even if the <br /> Fairgrounds obtains the CAFO permit. <br /> The starting point for this question is the City's home rule powers authorized by the Oregon <br /> Constitution. As the Oregon Court of Appeals recently confirmed in the case of AT &T v. City of <br /> Eugene, Or App (October 31, 2001), these constitutional provisions allow the people of <br /> cities to determine for themselves the powers of their local governments without the need to obtain <br /> authority from the state legislature. Those powers may be limited or preempted by state or federal <br /> statute or constitution. However, unless preempted, a power authorized by the charter is valid. In <br /> the case of the City's charter, the City Council is granted all powers that a council may possess. (See <br /> Section 4 of the Eugene Charter.) <br /> In the exercise of those charter powers, the City Council has adopted section 6.446 of the <br /> Eugene Code. That section, in part, prohibits any person from discharging, or causing or allowing <br /> to be discharged, into the City's stormwater system any substance other than stormwater, absent <br /> written authorization by the City. That section of the code would prohibit the Fairgrounds from <br /> discharging stormwater contaminated with horse manure or other contaminants into the Amazon <br /> Channel. <br /> Some horse advocates have expressed an opinion that the City cannot prohibit those <br /> discharges if the Fairgrounds obtains a CAFO permit. In other words, those individuals believe that <br /> the CAFO permit would preempt the City's stormwater prohibition. For the following reasons, we <br /> disagree. <br /> ORS 468B.200 to 468B.230 addresses CAFOs. Nothing in those statutory provisions <br /> explicitly or implicitly preempts the City's authority to regulate and control stormwater discharges <br />