Appeals filed in Hawes stream pollution case

Capital Press Staff Writer


BAKER CITY, Ore. – The state attorney general’s office has joined with an environmental group in appealing a circuit court judge’s decision to limit the right of the Oregon Department of Environmental Quality to regulate activities that could lead to nonpoint source pollution in the state’s rivers and streams.

Attorney General Hardy Myers and the Northwest Environmental Defense Center have sent notice that they are appealing 8th Circuit Court Judge Gregory L. Baxter’s decision to cancel the authority of DEQ to restrict farm and ranch practices in rivers and streams solely influenced by nonpoint source pollution.

The appellants also filed a motion to stay the effect of the judgment in trial court in Baker City that would enable DEQ to conduct business as usual while the appeal is pending. If the motion is rejected, Mike Llewelyen of DEQ said, the state would carry forward the motion to the Oregon Court of Appeals.

Baxter’s decision Dec. 7 was viewed as a substantial victory for the natural resource community that has long argued that DEQ was imposing regulations on farm and ranch activity under a law designed to limit point source pollution from industrial activity.

In the decision, Baxter threw out portions of a memorandum of agreement between DEQ and the federal Environmental Protection Agency that required DEQ to regulate activities in Oregon rivers and streams solely influenced by nonpoint source pollution based on total maximum daily load standards. TMDLs are used to determine pollutant levels in rivers and streams.

The decision was triggered by a lawsuit brought forward by Eastern Oregon cattle rancher Daryl Hawes, the Baker County Livestock Association and the Baker County Farm Bureau. In addition to arguing that DEQ did not have the authority to restrict farm and ranch activity, the suit brought out the impracticality of meeting TMDL temperature standards in the more than 1,000 water-quality limited rivers and streams in Oregon, said Dan O’Leary of the Portland law firm Davis Wright Tremaine, who litigated the case.

Temperature standards designated in TMDLs are so low that often the entire capacity of a river to receive heat is exhausted by sunlight, O’Leary said.

“It was essentially a zero tolerance,” he said.

The appellants plan to appeal the case on three fronts, said Jim Coon of the Portland law firm Swanson Thomas & Coon, who is representing Northwest Environmental Defense Center: Baxter did not have jurisdiction to cancel portions of the MOA between DEQ and the EPA; the state has the authority to regulate activities that can affect water quality under Oregon statute; and a recent decision by the 9th Circuit Court of Appeals shows that a state has the authority under the federal Clean Water Act to require TMDLs on rivers solely influenced by nonpoint source pollution.

A hearing on the stay is scheduled March 13 in Baker City.

Llewelyen said that pending the outcome of the stay, the department will continue to develop TMDL documents in water-quality limited basins, but it would not approve the documents. Document approval would trigger regulatory requirements, he said.

Also March 13, the trial court will hear the plaintiff’s petition to order the state to pay attorney fees.


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