MONUMENT - Sen. Ted Ferrioli chided a state agency for using 64 degrees as a gauge to decide whether or not Grant County waters are polluted.
Mother Nature, not mankind, pollutes waterways with high temperatures, and the Oregon Department of Environmental Quality should make exceptions with its water-quality rules for arid river basins, the senator told state planners Aug. 29.
Ferrioli, R-John Day, the Oregon Legislature's joint natural resources co-chair, accused DEQ of enforcing an unrealistic 64-degree standard for streams and rivers "without acknowledging that at times we have 110-degree ambient air temperature and 75-degree ground temperature."
Ferrioli asked for written assurance from Don Butcher, natural resource specialist with DEQ in Pendleton, that the controversial 64-degree standard for water bodies does not represent a goal but merely an indicator.
"The 64-degree temperature standard when ironclad is utterly bogus," Ferrioli said, "If the agency has done an about-face on this standard, I want that in writing, and I want to know when the agency will create an exception process that acknowledges that there are certain stream systems that will not and cannot meet the 64-degree indicator."
Ferrioli made his request during a public meeting hosted by DEQ concerning proposed total maximum daily load rules for the North and Middle Fork John Day basins. Butcher told a crowd in Monument that 64 degrees represents a trigger for closer investigation, not a goal to be pursued for every waterway.
Total maximum daily loads are calculations of how much pollutant a given water body can accept and not violate water quality standards. Under the 1972 Clean Water Act, DEQ is charged with developing total maximum daily load plans and rules for Oregon's river basins. On the John Day River, temperature is the primary pollutant of concern.
Ferrioli accused DEQ of flip-flopping on the 64-degree standard and emphasized his concern that the agency show flexibility.
"I heard you say that the 64-degree threshold is not a standard. I'd like that in writing from the department. It is an indicator only," Ferrioli said. "The other thing I heard you say is that monitoring is designed to monitor areas where permission is granted. I'd like it in writing from your agency that monitoring will not be conducted where there is no permission granted."
Ferrioli's second request referred to an uproar surrounding water monitoring on the North Fork John Day River. On May 31, Monument ranchers Jack and Darlene Forrest say they found two employees of DEQ and an employee of the Monument Soil and Water Conservation District trespassing on their land to install a temperature-monitoring device in the river. The sheriff investigated, but the Grant County district attorney's office declined to prosecute.
Butcher replied to Ferrioli's first request, "An interpretation of the temperature standard is a good idea." He did not reply to the second question but emphasized in his presentation that state planners would ask first before entering property to place river monitors.
Dennis Abraham, president of the Grant County Stockgrowers, wondered about the rules' impact on irrigators.
He asked, "What you're saying is that we're not going to say that one way to bring the temperature up is to shut our irrigation off and put the water back into the river?"
Butcher answered, "We may say that flow is a factor and that lower flows increase the temperatures, but we wouldn't regulate that and that wouldn't be included in a management plan responding to a TMDL."
However, Ferrioli cautioned, "If the TMDL data show that low flows are a problem, and that information is published, I can't imagine that it wouldn't be cause and documentation (for environmentalists) to litigate to stop irrigation as a beneficial use."
Pat Larson, science and natural resource advisor for the Oregon Cattlemen's Association, echoed Ferrioli's concerns with the 64-degree standard.
"The Oregon Cattlemen have been adamant that, like Sen. Ferrioli said, that 64 degrees is bogus. You've been unable to justify it. We've been waiting for DEQ to prepare a place for us to go visit, where you had greater than 64 degrees, planted some trees, shaded it, and fixed the problem," she said.
"You've written it in these other TMDLs as a standard," she charged, citing the Umatilla and Grand Ronde TMDL plans.
However, Butcher said his experience from developing TMDL plans, particularly for the Umatilla and Klamath river basins, did not show a tendency toward increased regulation of landowners.
Also, he said the TMDL numeric goals will not hamstring individual landowners.
"It's not an enforceable mechanism by itself," he said. "Nobody could go up to a landowner and say, 'You're not meeting a TMDL.'"
Butcher described the pollution limits as tools rather than regulations.
"There is a federal advisory committee on TMDLs, and what they have said is TMDLs do not have to be enforceable, but they do have to have reasonable signs of implementation," he said.
Also, inclusion on the federal Clean Water Act's section that cites waterways of concern does not mean a problem exists, Butcher said.
"The 303(d) list is not necessarily an indicator that there is a problem. It's an indicator there could be a problem," Butcher said.
Phil Murphy, a 50-year rancher in northern Grant County, said it's a good thing that the Clean Water Act's list of water quality-impaired streams is not the final word. He noted that Fox Creek is on the list for high temperatures, but Fox Creek's lower reach, Cottonwood Creek, is not on the list.
Butcher conceded that the list is imperfect.
"It's a first cut at where water-quality problems are," he cautioned. "If it was listed in error, that will show up in the TMDL process."
DEQ seeks comments on water quality list
SALEM - The Oregon Department of Environmental Quality is seeking public comment on its revised list of water bodies throughout the state that don't meet state water quality standards. Public hearings have been scheduled from Sept. 9 through Oct. 3 across the state so DEQ can receive comments on the list.
The list, often referred to as the "303(d) list," is usually updated every two years as part of Section 303(d) of the federal Clean Water Act. The list includes about 15,000 miles of impaired or "water quality limited" rivers and streams. See the Web page www.deq.state.or.us to view the list.
DEQ is accepting comments by mail, fax or e-mail through 5 p.m. Friday, Nov. 1. Comments may be mailed to: Oregon Dept. of Environmental Quality, Water Quality Division, Attn: Marilyn Fonseca, 811 SW Sixth Ave., Portland, OR 97204-1390. Comments may also be faxed to Fonseca at (503) 229-6037, or e-mailed to email@example.com.
Regional public meetings include (information sessions begin at the time listed; public hearings begin approximately 60 minutes afterward):
Thursday, Sept. 26 - Bend, 7 p.m., Central Oregon Board of Realtors office, 2112 N.E. Fourth St.
Tuesday, Oct. 1 - Baker City, 7 p.m., Oregon Department of Human Services, Child Welfare Office, Suite 200, 1705 Main St.
Wednesday, Oct. 2 - Pendleton, 7 p.m., DEQ Pendleton Office, First Floor Conference Room, 700 S.E. Emigrant.
ODA welcomes input on draft SB1010 plan
JOHN DAY - A public hearing will be held 7 p.m. Tuesday, Sept. 17, at Alec Gay Hall, Southeast Dayton St., to discuss new riparian-use rules devised under Senate Bill 1010, Oregon's agricultural water-quality law. The rules will affect water use in the Upper Mainstem and South Fork John Day River Agricultural Water Quality Management Area.
The plan and new rules were developed over the past two and a half years by the Oregon Department of Agriculture with assistance of a local advisory committee, representing a broad range of affected landowners and interest groups involved in water quality issues. The proposed new rules describe conditions on agricultural lands, including waste discharges, streamside area management, upland management and erosion, livestock management and irrigation.
The Sept. 17 hearing will begin with an informational session followed by a public comment period. Interested persons also may present oral and written comments. Written comments will be accepted until 5 p.m. Monday, Sept. 30., and can be sent to: Oregon Department of Agriculture, Attention: Upper Mainstem and South Fork John Day River Public Comment, Natural Resources Division, 635 Capitol St. N.E., Salem, OR 97301-2532.
Department staff, in consultation with the local advisory committee, will review and consider oral and written comments before presenting final recommendations to the State Board of Agriculture and the director of the department.