Senator Whitsett on the Clean Water Act

The Clean Water Act was adopted by Congress 1972. The purpose of the Act was to clean up our nation’s fresh water resources. It was designed to identify, and mitigate, water pollution from both point-sources, such as discreet discharges from a pipe, and from non-point sources, such as precipitation flowing from a field or forest.

The Act appeared to recognize that water pollution from point- sources generally are related to the activities of man. Most of these discreet sources of water pollution can be adequately addressed resulting in a cleaner water supply. For that reason regulations were adopted making identified mitigation procedures for point-sources mandatory and enforceable.

The Act also appeared to recognize that non-point sources of water pollution are less likely to be under the control of man and are   more difficult to address. For these reasons the Act required that non-point sources of water pollution must be identified and that water quality management plans must be created to attempt to address those more diffuse water quality problems. However, the Clean Water Act did not require mandatory compliance with the water quality management plans because that compliance is often neither physically nor economically possible.

Over the past forty years, implementation of the Act has made significant progress toward cleaning up our nation’s fresh water supply.
In the early 1990’s U.S. Environmental Protection Agency began legal efforts to expand the mandatory compliance to non-point sources of water pollution. Largely in response to that action, the Oregon Legislature adopted Senate Bill 1010 in 1993 that established the agriculture Water Quality Management Act. The EPA ultimately did not prevail in their attempt to enlarge their regulatory authority.

However, Oregon’s one of a kind state Agriculture Water Quality Management Act remains Oregon law. It is administered by the Oregon Department of Agriculture under the control of the Oregon  Department of Environmental Quality . The Oregon law established nearly forty separate state planning areas for water quality management.
The law provided for the appointment of Local Advisory Committees for each of those areas. The committees were tasked with identifying local water quality problems, and determining opportunities to improve that water quality. Each committee adopted rules designed to make progress toward better water quality within their local watershed.

The Administrative Rules the committees adopted have the full force of Oregon law. Each committee developed rules that they believed were appropriate for their particular area. However, all Local Advisory Committees were required to adopt one rule by the Oregon Environmental Quality Department.
That Rule was Oregon Revised Statute 468B. That statute defines all of the regulations that apply to water pollution from point-sources. Virtually every Local Advisory Committee in Oregon objected to adopting that rule, because it appeared to apply the mandatory regulations for point-source water pollution to the non-point source run-off that the committees were addressing.

The committee members knew that no way exists to meet those standards when applied to run-off from fields and forests. Committee members were concerned that the citizen lawsuit provision of the Clean Water Act would result in a third party bringing suit to force compliance with the 468B rule. Notwithstanding the plain wording of the ORS 468B rule, the Oregon Department of Agriculture assured committee members and producers that moving toward achievement of water quality standards would be sufficient to comply with those rules.

Unfortunately, the committee members were correct to be deeply concerned. The Northwest Environmental Advocates did sue the EPA, and various other federal agencies, to enforce the provisions of   Agriculture Water Quality Management Act as they apply to the Clean Water Act. The suit appears to be focused on attainment of compliance with the ORS 468 B rule.

In a ruling last month, Federal Magistrate John V. Acosta ruled in favor of the plaintiffs. Essentially, his decision appears to imply that working toward achievement of the Water Quality Management Plans is not sufficient. My reading of his ruling appears to suggest that the water quality standards actually must be met in order to comply with the rules in order to provide adequate habitat for threatened and endangered species

Many of these water quality standards, such as water temperature and water phosphorous concentrations, cannot be achieved. They cannot be met because the standards significantly exceed the normal background levels. Water in the streams often exceeds those standards without any influence by man.

The result is that water diverted from a stream for irrigation may already exceed the water quality standards. For that reason, it cannot be returned to the stream because the return flow exceeds the arbitrarily established standard for clean water.

Unfortunately, after nearly twenty years, the committee members’ greatest fears have become reality. A third party lawsuit has resulted in a court ruling that appears to apply point-source water quality regulation to agricultural practices. The ruling has the potential to virtually eliminate flood irrigation practices in much or Oregon when that irrigation practice results in any surface water return flow to the stream or river.

It is my concern that Federal Magistrate Acostas’ ruling, if not successfully appealed, has the potential to virtually eliminate centuries old irrigation practices in much of Oregon.
By Senator Doug Whitsett

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