Non-Point Source Water Regulations
Senator Doug Whitsett
R - Klamath Falls District 28
The Clean Water Act was adopted by Congress 1972. The purpose
of the Act was to clean up our nationís 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
Over the past forty years, implementation of the Act has made
significant progress toward cleaning up our nationís fresh water
In the early 1990ís the Oregon Environmental Quality Commission
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, Oregonís 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 law set up nearly forty
separate state planning areas for water quality management.
The law provided for the appointment of Local Advisory
Committees for each area. Those 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
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
appears to imply that making progress toward achievement of the
Water Quality Management Plan rules is not sufficient. My
reading of his decision appears to suggest that the water
quality standards actually must be achieved to comply with the
Water Quality Management Plan 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 membersí
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 Acostasí ruling, if not
successfully appealed, has the potential to virtually eliminate
centuries old irrigation practices in much of Oregon.
Please remember, if we do not stand up for rural Oregon no one
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