Oregon’s environmental regulators never finalized a limit on fecal coliform bacteria in Tillamook Bay, which means an oysterman isn’t time-barred from challenging the decision, according to a judge.
Tillamook County Circuit Court Judge Mari Garric Trevino has found the Oregon Department of Environmental Quality’s director didn’t sign an “issuance memorandaum” for its 2001 “total maximum daily load” for fecal coliform bacteria in the bay or send it to the required people.
Those steps were required for “due process” under the state and federal constitutions, as well as administrative law, which means the TMDL “was never finalized and instead remains a draft order,” the judge said in an Oct. 2 ruling.
Trevino’s ruling is important because oysterman Jesse Hayes has filed a lawsuit challenging DEQ’s standard for fecal coliform bacteria in the bay as too lenient.
Hayes claims the bacterial contamination has restricted or prohibited harvest of oysters from his 600 acres of plats in Tillamook Bay and he seeks stricter controls over alleged dairy pollution in the Tillamook basin.
Last month, an attorney for DEQ argued that Hayes Oyster Co.’s lawsuit should be dismissed on multiple grounds, including because he allegedly missed the deadline to challenge the TMDL by roughly 17 years.
Trevino has decided that since the TMDL was a “draft order,” Hayes’ claim seeking damages for a public nuisance should be dismissed but his attack on the standard itself isn’t time-barred.
“What we’re down to is a direct action against the TMDL,” said Thomas Benke, attorney for the Hayes Oyster Co.
Hayes plans to review his options regarding an appeal of the judge’s dismissal of his damages claim but he respects the judge’s opinion, which effectively gives him the opportunity to modify his complaint and continue with the litigation, Benke said.
“It means we get process,” he said. “Now they have to defend that 17-year-old decision.”
It remains to be seen whether Trevino decides she has the jurisdiction to order DEQ to finalize or modify the TMDL for fecal coliform bacteria, he said.
Nonetheless, the judge’s ruling makes clear that DEQ can’t stand behind the statute of limitations to defend a 17-year-old “compromise” TMDL that Hayes believes is illegal, Benke said.
“This is a positive development for all users of the rivers in Tillamook Bay,” he said. “The big winner here is Tillamook Bay.
Sadie Forzley, a state attorney representing DEQ, said she can’t comment on pending litigation.