This article was published on: 11/1/21 6:22 PM
Ahead of a key city council vote on a $28.5 million water pact with Google, the city of The Dalles filed suit in state court Friday in an effort to keep the tech giant’s water use a secret.
The city is seeking to overturn a ruling earlier this month from Wasco County’s district attorney, who found Google’s water use is a public record and ordered The Dalles to provide that information to The Oregonian/OregonLive. The city sued the news organization Friday, asking a judge to intervene.
Google is contemplating two new server farms on the site of a former aluminum smelter in The Dalles, where it already has an enormous campus of data centers on its property along the Columbia River.
Google says it needs more water to cool its data centers, but neither the company nor the city will say how much more – only that The Dalles can’t meet Google’s needs without expanding its water system. The deal calls for Google to pay for the upgrade.
Even so, the proposed water pact has attracted scrutiny and skepticism in The Dalles, a riverfront city of about 15,000 approximately 80 miles east of Portland.
Residents and nearby farmers are concerned about the city’s water long-term water supply amid an ongoing drought. They complain they don’t know enough about Google’s actual water use.
The city is now going to court to keep that information under wraps, arguing it’s a Google “trade secret” exempt from disclosure under Oregon law.
Regardless of how the city’s suit plays out, the litigation won’t be resolved before the city council votes on Google’s water deal on the evening of Nov. 8. That means the public won’t have access to that information, though city council members do.
“It seems pretty uncomfortable to be negotiating with somebody who can just claim trade secrets on all of their activities, that is only known to a few of you but not the rest of us,” Dalles resident Bruce Schwartz told the city council at a meeting on the water deal last month.
The Dalles and Wasco County both signed off this month on a new package of property tax breaks for Google. The new agreement is a much better financial deal for local governments than three prior deals, which have saved Google more than $240 million since it opened its first data center in The Dalles 15 years ago.
Google employs about 200 in The Dalles. The new deal could boost property tax collections by several million dollars a year but still figure to save Google tens of millions of dollars over the 15-year life of the tax breaks.
It doesn’t appear Google can proceed without more water, however.
So The Dalles and the tech giant hashed out a plan for Google to spend $28.5 million to expand the city’s water capacity. The pact calls for transferring some of Google’s water rights to the city and to replenish the large aquifer under the city with treated water during wet-weather months.
The Dalles says Google would use just a portion of the additional water capacity, giving the city more water for its residents and industry. Amid a prolonged drought, though, residents and farmers have expressed worry that the deal might strain the city’s water supply rather than boost it.
And they chafe at the secrecy over Google’s water use.
In its legal filing Friday, The Dalles argues that Google’s water use constitutes a “trade secret” exempt from public records law under Oregon law. The city said a nondisclosure agreement with Google prohibits it from disclosing such information and it seeks reimbursement for the legal costs associated with the public records dispute.
“Under Oregon state law what Google has submitted and has asked the city to keep in confidence is a valid trade secret and so we are obligated to keep it confidential,” Jonathan Kara, attorney for The Dalles, said at a city council meeting last month.
The Oregonian/OregonLive appealed the city’s decision to withhold the records on Google’s water use. In letters to the Wasco County district attorney, the news organization argued that there was a strong public interest in disclosing Google’s water use, and that the city’s nondisclosure agreement specifically exempted information like water use, which is collected by the city – not provided by Google.
Wasco County District Attorney Matthew Ellis ruled in the news organization’s favor on Oct. 15, concluding that water use does not fall under Oregon’s definition of trade secrets. He ordered The Dalles to release the records.
State law allows The Dalles to seek to block that ruling by suing the news organization, which is what the city did Friday.
“Google’s attempt to cloak its use of a vital community resource – water – is irreconcilable with the requirements of Oregon public records law. Oregonians have a right to this important information,” said Ellen Osoinach, staff attorney for the Reporters Committee for Freedom of the Press, which is representing The Oregonian/OregonLive in the case.
The committee is bearing the legal costs of pursuing Google’s water records. If The Dalles loses its case, though, it could be forced to pay the legal fees associated with the suit.
Other Oregon jurisdictions routinely disclose their industrial customers’ water use. Hillsboro, for example, discloses how much water Intel uses in its chip factories and Prineville reports how much water Apple’s data centers use there.
In other states where Google operates data centers, those facilities’ water use has become public as part of litigation or public records disclosures.
Last month, The Dalles city councilor Darcy Long-Curtiss expressed concern about the lack of information available on Google’s water use. Subsequently, she said, city staff allowed her to view information about Google’s water use and future needs that isn’t available to the public.
Long-Curtiss said she’s now ready to support the water agreement because she has been able to see the numbers for herself. While the general public cannot view that same information, she said she supports the city’s move to keep information secret if Google considers it a trade secret.
“I feel like it really only needs to be disclosed to city council members who are voting yes or no,” Long-Curtiss said. “I’m fine with that.”
The water fight in The Dalles echoes to Nestle’s contentious plan to bottle spring water in nearby Cascade Locks. Hood River voters overwhelmingly opposed that plan in 2016, but the Cascade Locks city council sought to proceed anyway. Gov. Kate Brown ultimately stepped in and blocked Nestle’s plant.
By contrast, there has been little organized opposition to Google’s growing thirst in The Dalles. But residents, farmers and environmentalists have all expressed concern about the toll data centers take on Oregon’s resources.
“It’s interesting we seem to be going in a direction of housing the internet in one of the dryer places in the West when these data centers need so much water,” said John DeVoe, executive director of WaterWatch, which promotes river health by seeking to balance private and public demands on Oregon’s waterways.
The Dalles’ pending deal with Google points to problems in regional water management, DeVoe said, because water constraints are putting further strain on endangered species and tapping out local wells that rural homeowners depend upon.
“These companies know that they can get a really, really good deal, tax break wise, electricity wise, water wise, by locating in our region. I think that says something about our region,” DeVoe said. “We’re not getting many jobs out of these things. We’re giving away the farm for way too cheap.”
In The Dalles, water rights have been an issue dating to the 1950s. At that time, the city’s aquifer was used heavily by the region’s farmers and an aluminum smelter that operated on property that now belongs to Google.
Oregon designated The Dalles a “critical groundwater area” in 1959 and began diverting water from the Columbia River to the nearby farms through a new irrigation district. That stabilized the main aquifer, according to the city, which says the aquifer began a robust recovery after the smelter shut down in the 1980s.
“People remember that there was a time when this aquifer was in pretty serious decline. But that was … largely related to the amount of irrigation that was occurring,” said Dave Anderson, the city’s public works director.
Even now, though, The Dalles’ water system capacity is limited to about 10 million gallons a day, and the city says demand is growing whether or not Google expands.
The deal with Google would expand The Dalles’ capacity to 15 million gallons a day by ceding some of the company’s groundwater rights to the city and by pumping treated water into the aquifer. State law limits subsequent withdrawals to 90% of what is pumped into the aquifer.
While The Dalles won’t say how much water Google wants, the city says the added 5 million gallons a day in capacity would meet the company’s needs and leave an unspecified additional amount available for general public use.
“The amount of water that we’re receiving in both water rights and in new production capacities, those are both amounts that are greater than what is being requested for the new development,” Anderson said. “The city comes out ahead on it in terms of water supplies.”
At public meetings and in vigorous discussions on Facebook, residents have fretted about the region’s broader water supply. Years of drought are straining farms and wells on rural properties near The Dalles, they say, and people living in or near the city express worries about committing any water to Google.
One problem, they say, is that the main aquifer’s boundaries aren’t clearly defined. At a city council meeting last month, The Dalles resident Benjamin Damm said he is concerned about water available to a rural property he owns, despite the city’s assurances of the main aquifer’s health.
“We should be fine, but if that drops, and how that might affect aquifers that are outliers, that’s a big concern. So, what if the aquifer does drop and it does affect people on the outskirts?” Damm asked. “Is there any recourse? “
The Dalles sought to understand such issues through three Google-funded studies on the city’s water system, according to Anderson, which provided a clear understanding of the aquifer’s capacity even though it didn’t provide firm information on its boundaries.
Whether water is tight or abundant in future years, Anderson said the city will have more water available to its residents under the deal with Google than if it proceeds without it.
“We’re not anticipating there being losers in this scenario,” he said.
By Mike Rogoway