We think Oregon farm and forest interests are justifiably anxious as the state Department of Environmental Quality works to update its general permit for pesticide discharges under the Clean Water Act.
At question is whether DEQ will expand its authority and by extension give environmentalists grounds to file civil suits against individual property owners under federal law.
The U.S. Environmental Protection Agency delegates its Clean Water Act authority to certain states, including Oregon, which developed a “general permit” for pesticide discharges in 2011.
Sources told the Capital Press that the original policy wasn’t a problem for farmers and foresters, though, because it largely just required them to follow the EPA pesticide label and general “integrated pest management” standards.
But the 2011 permit expired in 2016 and DEQ is devising a replacement.
Under an early draft of the proposed replacement, the agency would regulate pesticide spraying over state surface waters “whether wet or dry at the time.”
That in itself is an expansion of DEQ authority over pesticides. The Oregon Farm Bureau and Oregonians for Food and Shelter are concerned by proposed drafts they’ve discussed with DEQ, which indicate dry waterways would be defined broadly, requiring many more farmers to register with the agency and submit pesticide management plans.
That would be troublesome. A field in the Willamette Valley might be quite dry during the season when a farmer would apply pesticides. The same field could have pooled water during the rainy winter season when no field work is attempted.
But enforcement actions are not limited to DEQ. The Clean Water Act allows for private lawsuits.
Even if DEQ used a commonsense definition of surface waters in its enforcement, the inclusion of broad language in the policy would provide environmental groups the nexus to file civil lawsuits to compel property owners to comply with regulations.
It appears in drafting its proposed permit DEQ is responding to comments from the environmental community that want expanded enforcement.
The DEQ proposal is an overreach, and is reminiscent of the controversy surrounding the 2015 Waters of the United States rule. In that instance the Environmental Protection Agency and the Corps of Engineers sought to unreasonably expand the waterways covered by the Clean Water Act. Those rules were formally rescinded in November by the Trump administration.
There is always a temptation for regulators to expand their authority whenever they get the chance. If DEQ can’t resist this opportunity, we can only hope it will employ the narrowest language possible to remedy actual shortcomings in existing regulations rather than unleashing plaintiffs to create imaginary ones.