EPA Issues Damning Critique of Oregon’s Water Quality Anti-Degradation Policies

cows-in-stream-e1369702765957Concluding the Oregon Department of Environmental Quality (DEQ) does not have its existing house in order to protect water quality, the U.S. Environmental Protection Agency (EPA) issued a damning critique of Oregon’s policies that are supposed to protect the state’s water from being degraded. Completing the review pursuant to a federal court order, EPA found that key parts of Oregon’s policies are not consistent with federal law because they fail to protect water quality, human health, fish and wildlife from being degraded by pollution discharges. The EPA review stemmed from a lawsuit won by Northwest Environmental Advocates (NWEA) in February 2012 that largely overturned EPA’s 2004 approval of Oregon’s water quality standards for temperature. EPA cover letter here.

The EPA review vindicates NWEA’s position that Oregon’s antidegradation policies have long failed to meet federal requirements. It took NWEA two lawsuits and over a decade to get EPA to do the review.

In its review, EPA found that Oregon’s policies fail to protect uses of the water that existed in 1975, as required by the Clean Water Act regulations. The purpose of these antidegradation policies is to ensure that water quality does not become worse than it was when Congress passed the Clean Water Act in 1972.

EPA also found Oregon’s policies do not protect water pollution that is currently at safe levels from creeping up to and over unsafe levels. EPA pointed to the fact that DEQ allows repeated increases in temperature and repeated increases in pollutants that depress levels of dissolved oxygen in the water without any consideration as to whether there remains room in a river to absorb the pollution. Likewise, EPA found Oregon DEQ has no method to keep track of how much room is left.

EPA’s review gave special attention to Oregon permits that cover numerous polluters under one “general” permit. The federal agency concluded Oregon is skirting the law by providing no cap on the cumulative amount of pollution DEQ authorizes under these general permits. EPA also pointed out Oregon’s general permits policy fails to provide the minimum level of protection required under the Clean Water Act. DEQ authorizes innumerable discharges under general permits including industrial and construction stormwater, pesticide spraying, and activities such as gravel and suction dredge mining and food processing plants. The vast majority are not subject to public notice or review.

EPA also reviewed Oregon’s compliance with a federal requirement that it referred to as ensuring a state has its “existing ‘house in order'” before it allows new pollution that lowers water quality. EPA pointed out that Oregon simply disregarded the federal requirement altogether.