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EPA Approves Oregon Water Rules; Lawsuit Likely by Mike O'Bryant Columbia Basin Bulletin - March 5, 2004

The federal Environmental Protection Agency approved in the nick of time new water quality standards submitted to the federal agency in December by the Oregon Department of Environmental Quality.

The water quality rules set new water temperature standards to protect salmon and trout, including some temperatures that are cooler than the state's previously approved standards and some that allow for warmer water. All are based on scientific data, the two agencies said.

The standards will govern new permits for point source discharges into water bodies in Oregon, such as industrial discharges, as well as non-point sources of pollution, like those from agricultural and forestry use. In addition, as permits come up for renewal, they would have to meet the new standards, which both EPA and DEQ said are more protective than the previous rules.

The approval came just in time to meet the March 2 deadline set by U.S. District Judge Ancel Haggerty, who deemed both the EPA-approved Oregon standards and the no jeopardy biological opinion that supported them, largely invalid in a March 2003 ruling. Oregon submitted those standards to EPA in 1996 and received approvals from EPA and NOAA in 1999. Northwest Environmental Advocates initiated the legal action against EPA and NOAA Fisheries in April 2001.

However, Nina Bell, executive director of NWEA, said the new standards include loopholes that allow industrial discharges and agricultural waste to continue to degrade water quality and promised her organization would take further legal action soon.

"We've written hundreds of pages of comments to both EPA and DEQ," Bell said. "We've done all we can do within that course of action and so the only course we have left is to go back to court."

While the numerical criteria in the standards are fairly straightforward, NWEA is primarily concerned with the narrative rules, which Bell said create loopholes for both point and non-point discharges, which doesn't leave much for protecting fish.

"The original lawsuit provoked the agencies into doing some very important things," she said. "Still, this rule is in some ways worse than before. What it gives from one hand, is taken away by the other hand."

Unless the EPA approval of the standards is overturned, the state of Oregon now has its own water quality standards that meet both federal Endangered Species Act and Clean Water Act requirements, EPA said.

"I salute the scientists, agency staff, environmental groups, industry, tribes and all those who have worked on the temperature problem for the past several years," said John Iani, EPA Region 10 administrator. "Now it's time to put the debate over standards to rest, and get on with the even more important task of making improvements in water temperatures to meet these new standards."

Randy Smith, director of Water Quality at EPA's Region 10, said the new standards contain a number of changes to comply with Judge Haggerty's order and provide the best water quality protections of Northwest states.

"These standards are significant in the Pacific Northwest," Smith said. "Oregon has long been a leader in dealing with the problem of temperature with salmon. These are clearly state of the art in the Northwest."

The standards have changed from a relatively simple set of numbers, to those with different temperatures corresponding to what different fish need during different life stages at different times of the year, he said.

"That's why they have the detailed maps," he said. "They are more precise, more accurate and more state of the art than before."

The watershed maps that are now part of Oregon's rules that identify water quality requirements for each water body in the state were developed with input from NOAA Fisheries, the EPA and the U.S. Fish and Wildlife Service. The maps can be found, along with the water quality standards, on the Internet at www.deq.state.or.us/wq/standards/wqstdshome.htm.

DEQ said the maps will help officials, such as program managers in the Oregon departments of Forestry and Agriculture, as well as those developing TMDLs and watershed plans, identify temperature requirements for each of the state's water bodies. In the past, that direct link between "specific water bodies and temperature requirements was vague," DEQ said.

"These standards provide a state-of-the-art tool for local communities and watersheds. They're firmly grounded in current science, easier to understand, and will continue the protection and recovery of the state's endangered salmon and trout species," said Holly Schroeder, administrator of DEQ's Water Quality Division.

While some temperature standards are now cooler (ranging from 10 degrees Centigrade to 20 C), others like the standards for bull trout rearing are warmer, rising from 10 C to 12 C. The previous general temperature standard of 64 degrees Fahrenheit (about 16 C) applied to most of the state's streams and rivers.

Migration corridors, said Mark Charles, DEQ water quality manager, will remain at 68 F (about 18 C). Those corridors include the mainstems of the Columbia River, Snake River, the lower 50 miles of the Willamette River and much of the mainstem John Day river.

A new component of the standards is that if actual water temperature in a stream already is below the state standards, then the colder temperature must be maintained, Charles said.

However, the new standards don't break new policy ground in terms of temperature standards at privately owned and federal dams. The water temperature limit at dams continues to be 68 F.

"There has been a continuing controversy about the impact of the CWA on hydro operations," Smith said. "This Oregon rule doesn't call out dams and give them a set of procedures. This doesn't pave new policy ground for dams."

Still, he said, like forestry projects or pulp mills, those entities must determine how to reduce their impact.

The new standards also clarify how Oregon's "anti-degradation" policy, according to DEQ. That policy requires proposed new or increased pollution discharges to go through a water degradation review by DEQ before approvals. DEQ said that the "review balances the need for the discharge against the water quality degradation that might occur as a result of the discharge."

This is one of the areas in which Bell disagrees.

"The court also told the agencies to do something with implementing the anti-degradation policy," Bell said. "Instead, they added a long list of exemptions. I'm hard pressed to look at that list and find anything that isn't an exemption."

Although not the most important, she said the policy exempts recurring activities and specifically mentions, among other activities, grazing and maintenance dredging. These activities, she said, are exempt from review. Also exempt are discharges into existing mixing zones and new discharges as long as they are discharged into an existing mixing zone, she said. The outcome of the exemptions is that point sources are just exempt from temperature standards, she said.

Bell also complained about the circular nature of some narrative requirements. One requirement deems logging activities in compliance with Oregon's Forest Practices Act and exempts those activities. She said that doesn't make sense now that the water quality standards have been changed. While DEQ said it is working with the Oregon Department of Forestry to update its forest practices, Bell said that isn't happening yet.

EPA and DEQ said the new standards are the result of "extensive public review and consultation" with the USFWS, NOAA, tribes and ODFW.

"Today's action is the culmination of long-term efforts between EPA, federal fisheries agencies, DEQ and others to address serious water quality and fish habitat issues in Oregon and make significant improvements," said DEQ Director Stephanie Hallock.

Related Sites:
Oregon Department of Environmental Quality: www.deq.state.or.us
Environmental Protection Agency, Region 10: www.epa.gov/r10earth
Water Quality rules at the DEQ Web site: www.deq.state.or.us/wq/standards/wqstdshome.htm
Water Quality rules at the EPA Web site: www.epa.gov/r10earth/oregonwqs.htm
Northwest Environmental Advocates: www.northwestenvironmentaladvocates.org