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Judge chastises EPA on lack of oversight

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Oregon state officials unsure how to parse court ruling


By MITCH LIES


Capital Press


A federal judge has ruled the Environmental Protection Agency is not adequately overseeing Oregon's regulation of nonpoint source water pollution.


U.S. District Judge John Acosta ruled Feb. 28 that by approving the state's regulation of nonpoint water pollution based on limited review of the state's plan, EPA is out of compliance with federal law.


"I think the primary take home message of the court decision is that EPA can't stand on the sidelines while Oregon basically acts as if nonpoint sources aren't covered by water-quality standards," said Nina Bell, executive director of Northwest Environmental Advocates, the plaintiff in the lawsuit.


State officials said Feb. 29 they were unsure of the ruling's effect on the state's regulation of nonpoint source pollution.


"At this point, we're just digesting it and trying to figure out what it means," said Greg Aldrich, water quality division administrator of the Department of Environmental Quality.


"In terms of the (ruling's) impact on the agricultural water-quality management program, I do not know," said Ray Jaindl, administrator of the Oregon Department of Agriculture's natural resources division.


"I think there are a lot of unknowns about what the lawsuit really means," said Katie Fast, director of government affairs for the Oregon Farm Bureau. "But I think there is one take home from it: It shows there is a heightened level of scrutiny among the environmental community of the agricultural water quality management program and the Forest Practices Act that will continue to be a challenge in the future.


"We continue to push that the programs meet both the federal and state criteria for protecting water quality, and are some of the top programs in the nation for agricultural lands and forest lands," Fast said.


In his 51-page ruling, Acosta wrote in essence that EPA was wrong not to review best management practices DEQ used to determine the state was meeting water quality standards for nonpoint source pollution.


Nonpoint source pollution includes runoff from agricultural and forestry activities.


The practices, which are developed and overseen by the state departments of agriculture and forestry for farm and forest operations, do not ensure the state is meeting the federal standards, Acosta wrote.


"The EPA cannot choose to review and approve water quality standards while ignoring separate provisions which have the potential to cripple the application of those standards," he wrote.


"Currently, a person in compliance with the Forest Practices Act is deemed in compliance with Oregon water quality standards," Bell said.


"EPA as an agency never reviewed the act, and the law, in some cases, says if there are rules or laws passed by legislatures that affect the way water-quality standards can be obtained, then EPA has to review them," Bell said.


Acosta also sided with the plaintiffs' challenge to Oregon's provision for considering the natural conditions of a stream when regulating temperature standards.


Under Oregon law, if the "natural thermal potential of all or a portion of a water body exceeds the biologically based (criteria for protecting fish), the natural thermal potential temperatures supersede the biologically based criteria."


Acosta ruled the EPA's approval of that condition "was arbitrary and capricious" for several reasons.


"The first and foremost," Acosta wrote, is that the natural conditions criteria supplant "otherwise lawful water quality standards."



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