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Environmental groups recently sued the Oregon Department of Environmental Quality (“DEQ”) over its alleged failure to renew permits in a timely manner. Most permits issued by DEQ under the Clean Water Act have an initial term of five years. According to the complaint, at least 75 percent of all such permits in Oregon have exceeded their five-year term. Instead of renewing the permits, DEQ has been “administratively continuing” them. The petitioners allege that some of the permits have been continued for more than two decades (called “zombie permits” by the petitioners).

This is a concern for the environmental groups because DEQ continually updates its water quality standards and its list of impaired water bodies. Permits that are administratively continued instead of being renewed do not take these changed circumstances into account.

The suit was brought under the Oregon Administrative Procedures Act, which authorizes courts to "compel an agency to act where it has unlawfully refused to act or make a decision or unreasonably delayed taking action or making a decision." ORS 183.490. The petitioners seek a declaration from the court that DEQ has unreasonably delayed making decisions on permits that have been pending for more than five years and an order requiring DEQ to make a decision on each such permit renewal application "within a reasonable timeframe." DEQ has not yet answered the complaint, but recently acknowledged the backlog and stated that it has grown because of changes in agency leadership and lack of money to do the work.

It remains to be seen whether this lawsuit will have anything more than a political impact. It can be easier to kill a zombie than to convince a court to order an agency to take action more quickly. See, e.g., In re Pesticide Action Network N. Am., 532 F App'x 649, 651 (9th Cir. 2013) (applying a balancing test to determine whether to compel agency action on the basis of unreasonable delay).

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