The Oregon Department of Agriculture (department) is currently holding hearings and accepting comments regarding the adoption of the Headwaters and Lost River Area Water Quality Management Plans (area plans). Dedicated community members on the Local Advisory Committees (committees) worked for more than five years to develop the area plans before submitting them to the department. We believe that the community should reject these plans, only because certain amendments, made by the department over the strenuous objections of the committees, are inappropriate and unacceptable. The most important amendment made by the department was the addition of pertinent parts of Oregon Revised Statute 468B (statute) to the plan as an Area Rule (rule). This statute was written to regulate point sources of water pollution such as industrial waste or sewage flowing through a discrete conveyance like a pipe. Not surprisingly, its language is clearly inappropriate for regulation of non-point sources of agricultural pollution such as storm water run off.

The May 29, 1993 records from the Oregon House Committee on Natural Resources repeatedly state that Senate Bill 1010 (senate bill) was developed because "court cases" assumed that the 1972 Federal Water Pollution Prevention Act (Clean Water Act) gave authority to regulate all agricultural pollution to the Environmental Protection Agency (EPA). Because of this "court case" created assumption, a perceived urgency existed to create Oregon legislation that would prevent the strong arm of that federal agency from creating and enforcing rules regulating agricultural run off. As a direct result, the senate bill was passed to transfer regulatory authority over all agricultural sources of pollution in Oregon to the Department of Agriculture. Development of area plans is a statutory requirement directly resulting from that legislation.

The Ninth Circuit Court of Appeals has subsequently forcefully stated in both the Camp Creek and Pronsolino cases that the Clean Water Act confers no regulatory authority regarding non-point source pollution to any federal or state agency. EPA has no direct authority under the Clean Water Act to regulate agricultural practices related to water pollution from non-point sources.

Therefore, the senate bill was unfortunately created under false premises. The resulting laws established state regulatory authority over non-point source agricultural pollution where no federal regulatory authority previously existed. Further, according to the July 10, 1996 Attorney Generals opinion from the Kulongoski Department of Justice (attorney general’s opinion), Oregon Revised Statute 468B conferred no regulatory authority over agricultural runoff or agricultural practices to either the Department of Environmental Quality or the Department of Agriculture.

The statute was written pursuant to Oregon legislation enabling the state to enforce the provisions of the 1972 Clean Water Act. It was written to inclusively address all point sources of pollution. The intent of the legislation, and subsequent statute, could not have been to regulate non-point sources of pollution because the Clean Water Act conferred no such authority. It certainly did not address agricultural run off or agricultural practices.

The statute broadly defines any and all pollution of the waters of the state as a public nuisance. It defines water pollution, in part, as the change in its color, taste, odor, turbidity, silt, or temperature by any means. It further prohibits anyone from placing, or causing to be placed, anything in an area where it could result in pollution of the waters of the state.

We believe that inclusion of this statutory language in any area rule may have dire consequences for irrigators. In fact, we believe that inclusion of this language will extend public nuisance status to commonly accepted agricultural practices.

Area plan rules have all of the authority of Oregon Administrative Rules.

The department’s insertion of ORS 468 B in the area plans, as an area rule, is not appropriate for regulation of non-point agricultural sources of pollution. In fact, many industry leaders believe it exceeds their state granted authority pursuant to the Oregon legislation.

Oregon Department of Agriculture does now possess statutory authority to regulate non- point sources of pollution from agricultural practices. Senate Bill 1010 established this authority. However, the department can neither legally expand nor develop more statutory authority by creation of administrative rules. Insertion of ORS 468B language in a plan as an area rule is inappropriate for regulation of agricultural practices, and it may even expand the department’s statutory authority. Consequently, the department must create appropriate new language to address their stated need for an area rule to clarify their enforcement capability for agricultural sources of pollution. In fact, the attorney general’s opinion states: "Therefore, the most certain way to insure that either DEQ or ODA have legal authority to take an enforcement action against a farming practice is for ODA to develop a program or rule that applies directly to farming practices."

ODEQ plans completion of Total Maximum Daily Loads for the water quality limited Lost River and Klamath River by June of 2005. Once these pollution load allocations are established, the plan’s area rules will represent the controlling regulatory authority over agricultural practices within those areas. Strict enforcement of this proposed area rule will certainly identify many currently accepted agricultural practices within these watersheds as a public nuisance and prohibit those practices.

The department staff has repeatedly indicated that the department only needs the specific ORS 468B language in order to prosecute the really bad actors, and that it has no real intention of enforcing the plain wording of the statute as included in the plan area rules. Will the department staff, or Director, commit contempt of court when ordered to comply with the plain wording of the area rules by an activist judge pursuant to a third party lawsuit?

Insertion of this language into plan area rules is contradictory to the agricultural practice acts. It almost certainly will result in many common agricultural practices being designated as a public nuisance. Primarily for this reason, it has been strongly opposed by many advisory committees throughout Oregon, including the Headwaters and Lost River Local Advisory Committees.

Why does Oregon Department of Agriculture insist on the inclusion of this onerous statutory language in each and every area plan in the state?

468B.005 Definitions for water pollution control laws. As used in the laws relating to water pollution, unless the context requires otherwise:

(2) The water pollution control laws of this state shall be liberally construed for the accomplishment of the purposes set forth in ORS 468B.015

(1) Pollution of any of the waters of the state is declared to be not a reasonable or natural use of such waters and to be contrary to the public policy of the State of Oregon,

468B.025 Prohibited activities

(1)Except as provides in ORS 468B.050 05 468B.053, no person shall:

(3) Violation of subsection(1) or (2) of this section is a public nuisance.