Ruling limits DEQ’s authority to regulate ag
Eighth Circuit Court Judge Gregory L. Baxter on Dec. 7 ordered the state to cancel an agreement with the federal Environmental Protection Agency that gave DEQ the authority to restrict production practices that could lead to nonpoint source pollution in Oregon waterways wholly influenced by nonpoint sources.
“This is a major victory for agriculture,” said Jean Wilkinson, a lobbyist for the Oregon Farm Bureau Federation. “Water-quality limitations that are unreasonable, unworkable and unjustifiable represent some of the biggest threats to agriculture in this state. The sooner we can impose checks and balances on these regulations, the more secure agriculture will be.”
The decision was initiated by a suit filed by eastern Oregon cattle rancher Daryl Hawes, the Baker County Livestock Association and the Baker County Farm Bureau that challenged the authority of DEQ to limit production practices on Hawes’ ranch, which straddles the Burnt River. The suit alleged that DEQ incorrectly interpreted provisions of the Clean Water Act and it brought to light the impracticality of the zero tolerance imposed on farm and ranch activities in meeting total maximum daily load temperature standards in the more-than 1,000 water-quality-limited rivers and streams in Oregon.
Temperature standards designated in TMDLs are so low that often the entire capacity of a river to receive heat is exhausted by sunlight, said Dan O’Leary of the Portland law firm Davis Wright Tremaine, who litigated the case.
“It was essentially a zero tolerance,” he said.
DEQ was using standards originally written for the purpose of policing industry to regulate farms and ranches, Wilkinson said.
“DEQ can utilize TMDLs to regulate industry and big business, but they need to stay out of agriculture,” she said. “TMDLs were never intended to be used to regulate nonpoint source pollution.”
Wilkinson said the Farm Bureau and the Oregon Agricultural Legal Foundation, which helped fund the case, would like the Oregon Department of Agriculture to establish and regulate water-quality standards for farm and ranch activity in Oregon, not DEQ.
The ODA has established production practice guidelines for water-quality protection in 24 of the state’s 39 water basins under Senate Bill 1010, which state lawmakers passed in 1993. The department hopes to have production standards for water quality protection in place in all 39 basins by 2003.
“(DEQ’s TMDL program) was just an additional layer under an already managed program,” O’Leary said.
Even though DEQ had not done so, the department had the authority to force ODA to redo a basin’s water quality protection plan prior to the Dec. 7 decision if DEQ felt the plan did not meet TMDL program standards, Wilkinson said.
“Agriculture has been relieved of a very extreme regulatory burden by this decision,” O’Leary said.
O’Leary said that it is unclear if the ruling will extend to all rivers and streams in Oregon that are designated as water-quality limited.
“You can’t automatically assume that this ruling can be extended to streams impacted by nonpoint and point sources,” he said.
Still, the ruling’s impact on agriculture is extensive, said Joe Hobson, an attorney with Oregon Agricultural Legal Foundation, because the vast majority of rivers and streams in Oregon are influenced solely by nonpoint sources.
O’Leary said he expects the state to appeal the decision.
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