## MEMORANDUM OF UNDERSTANDING BETWEEN THE OREGON STATE DEPARTMENT OF ENVIRONMENTAL QUALITYAND THE OREGON STATE DEPARTMENT OF FORESTRY 

## I. Introduction and Statement of Purpose A. Introduction 1. TheEnvironmental Quality Commission (EQC) and the OregonDepartment ofEnvironmental Quality (DEQ) are responsible for implementing theFederal Clean Water Act in Oregon, ORS 468B.035, including adoption ofwater quality standards. TheDEQhas adopted and the U.S. EnvironmentalProtection Agency (EPA) has approved Oregon's water quality standards and its 1994/1996 303(d) list. DEQintends to update and resubmit its 303(d) list to EPAin 1998 and subsequentyears as required byfederal regulations. DEQ is setting priorities for TMDL preparation. 2. Subsection 303(d) ofthe Federal Clean WaterAct (the Act), 33 U.S.C. §1313(d),-requires states to identify waters for which effluent limitations or otherpollution control requirements required bylocal, State, orFederal authority are not stringent enoughto implement applicable waterquality standards, 40 C.F.R §130.7 

### (b). These waterbodies are l,"eferred to as "water quality limited."Foreach water onthe 303(d).list that is notremoved from the list byfindings .ofwater quality impairment due to natural conditions orbest management practice (B11P) effectiveness, the state must establish a total maximum daily load (TMDL) allocation at a level necessary to implement the applicable water quality standards with seasonal variations and a margin ofsafetywhichtakes into account any lack ofknowledge concerning the relationship between effluent limitations and water quality. A TMDL is the sum ofthe individual · wasteload allocations for point sources and load allocations for non-point sources and natural background, 40 C.F.R §l30.2(i). 3. TMDLs must be incorporated into the continuing planning process required by Section 303(e) ofthe Act and the continuing planning process must be included in the state's water quality management'plan. Sections 208 and 319 ofthe Act, 33 U.S.C. §1288 and §1329, require the state to prepare non-point source management plans. 4. ORS 527.765 requires the OregonBoard of.Forestry (theBoard), in consultation with the EQC, to establishBestManagement Practices (B11Ps) and otherrules applying to forest practices to ensure that to the maximum extent'practicable non-point source discharges of
. pollutants resulting from forest operations do not impair the achievement and maintenance of water quality standards.established by the EQC. The OregonDepartment ofForestry (ODF) is theDesignatedManagement Agency 

### (DMA) by DEQ for regulation ofwater quality on nonfederal forestlands. Forest operators conducting operations in accordance with ODF BNfPs are considered to be in compliance with Oregon's water quality standards. 

### DEQIODFNJOU,· April16, 1998 PAGE

### 1175. The Board in consultation and with the participation and support ofDEQ, has adopted water protection rules in the form ofB:tvfPs for forest operations, including, but·not limited to, OAR Chapter 629, Divisions 635-660. These rules are implemented and enforced by ODF and monitored to assure their effectiveness. DEQ participates in the design and implementation of these monitoring efforts. The EQC, DEQ, the Board and ODF determined that pollution control measures required as BN!Ps under ORS 527.765 

### will be relied upon to result in achievement ofstate water quality standards. 6. · The EQC, DEQ, the Board, and ODF are all committed to restoring salmon and meeting water quality through the Healthy Streams Partnership and OregonPlan for Salmo.n and Watersheds, 1997 Oregon Laws, Ch. 7
.. 

### B:

**Purpos~s** 

### ofMOU The purposes ofthis memorandum ofunderstanding: 1. To further define the respective roles and responsibilities ofthe EQC, the DEQ, the Board, and ODF in preventing, controlling and reducing non-point.source discharges to achieve and maintain water quality standards;
. 2. To explain the process for detenniningwhether (a) forest practices contribute to identified water quality.problems in listed water quality limited streams; (b) ifso, to determine whether existing forest practice rules provide sufficient control to assure that water quality standards 

### will be met so that waters can be removed from the 303(d) list; 3. To describe the process for interagency_coordination in revising forest practice rules, if necessary, to assure the achievement ofwater quality standards;·and 4. To encourage the use ofvoluntary and incentive-based regulatory solutions to achieve and maintain waterquality. ·


## II. ForestPractice BNIPs and Water Quality Standards Since ODF is the DMAfor water quality management on nonfederal forestlands and ODF's BN.!P's are .designed to protect water quality, ODF and DEQ 

### willjointly demonstrate how the FcrestPractices Act (FPA), forest practice rules (including the rule amendment process), and BN.!P's are adequate protection pursuant to ORS 527.765. This demonstration ofthe ODF BN!P program adequacy 

### will be done at the statewide scale with due consideration to regional and local variation 

### in

**~ffects** including non-anthropogen,ic factors that can lead to water quality standard violations.
DEQIODFftt!OU,· April16, 1998 PAGE217

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Water quality impairment related to aquatic weeds, bacteria, chlorophyll a, dissolved oxygen, flow modification, many nutrients, total dissolved gas, ortaxies are generally not attributable to forest managementpractices as regulated by the FPA However; it is generally accepted that forest management practices have in some cases caused documented changes in temperature, habitat modification, sedimentation,,turbidity, and bio-criteria. Therefore, this statewide demonstration of FPA effectiveness in protection ofwater quality will address these specific parameters and will be conducted in thefollowing order:
a. temperature (draft report target completion date Spring, 1999), b. sedimentation and turbidity (draft report target completion date Summer, 1999), c. aquatic habitat modification (draft report target completion date fall 1999), e. bio-criteria (draftreport target completion date end 1999), and 'f. otherparameters (draft report target completion date spring 2000). The analyses will be presented in a format compatible withEPAregion 10 guidance (pages 4-6, dated November 1995) regardingB:tvi? effectiveness determinations, and 

### will include:
a. "Dataanalysis ofthe effectiveness ofcontrols relative to the problem": analyze relevant data and studies onthe parameter and known control methods, b. "Mechanisms requiring implementation ofpollution controls": give a clear exposition of the rules/programs that are designed to provide for protection, c. "Reasonable time frame for attaining water quality standards": discuss expected recovery times which may be longfor some parameters because the ecological processes that bring recovery are long-term,.and d. "Monitoringto trackimplementation and effectiveness ofcontrols": describe the scope and extentthe effectiveness and implementation monitoring program and how they tie backto program changes for adaptive management. In addition, these analyses will address attainment ofstate anti-degradationpolicy. These demonstrations will be reviewed bypeers and otherinterested parties priorto 

### final release. While analysis is being conducted and unless oruntil changes are made in accordance with ORS

**527~765,** theFPA and implementing rules will constitute the water qualityBN.tP programfor forestlands. These sufficiency analyses will be designed to provide background information and techniques for watershed based assessments ofBN.tP effectiveness and water quality assessments for watersheds with forest and mixed land uses.

DEQIODF1l;fOU,-April16, 1998 PAGE317

## ill. 

## ODF andDEQ coordination for listed "Yvaterbodies (i.e., 303(d) list) A. Waterbody Specific Coordination The following coordination will occurbetween ODF and DEQ regarding the Tiv:IDL process and water quality management plans:

(a) Forbasins where agreement is reached that water quality impainnent is not attributable to forest managementpractices (Figure 1), the forest practice rules will constitute the water quality compliance mechanism for forest managementpractices on nonfederal forestland. ODF will not participate in the development ofthe TMDL orwater quality management plan except as requested to assistDEQ as ODF budgeted resources permit. If the basin · associated with alisted waterbody is entirely or almost entirely on federal land or nonforestland_ODF will have little or no involvement (Figure 1). (b) Forbasins where water quality unpainnent is attributed to the long-term legacy ofhistoric forest management and/or otherpractices, but ODF and DEQjointly agree that the forest practice BMP's are now adequately regulating forest management activities and not adding to further degradation ofwater quality, the forest practicerules 

### will be designated in the water quality management plan as the mechanismto achieve water quality compliance-for forest operations. ODF 

### will participate with the otherDMAs in developing the water quality managementplan as necessary. (c) Forbasins where water.quality impainnent may be attributable to forest management practices and ODF and DEQ cannot agree that the currentBMPs are adequately regi.Ilating forest managementactivities (Figure 1), the currentforest practice rules 

### will be designated in the water quality management plan as the mechanismto achieve water quality compliance for forest operations. However, ODF 

### will design and implement a specific monitoring program as part ofthe basin plan to document the adequacy"ofthe best management practices. The schedule and scope ofthe monitoring program 

### will bejointly agreed to byDEQ and ODF. During theinterim, while monitoring is being conducted, the currentrules 

### will constitute tl).e water quality compliance mechanism. Ifthe monitoring results indicate that changes in practices are needed in abasin, the DEQ and the Board 

### will use OAR 629-635-120 to create watershed specific protection rules or use other existing authority to ensure that forest management activities do not impair water quality. (d) Forbasins where both ODF and DEQ agree that there are water quality impairments due to forest management activities even withFPArules and BMP's, the DEQ and the BOF will use OAR 629-635-120to create watershed specific protection rules oruse other existing authority to ensure that forest management activities do notimpairwater quality. 

### In deciding between conditions (a)-(d) above, the statewide rule sufficiency analysis (described in ll) 

### will be critical in determining which situation exists. Ifthe practices and impainnents are found by DEQ and ODF to be regional or statewide in nature the BOF 

### will create or modify statewide orregional rules or design other effective measures to address the impainnent. 

### DEQIODFi'IIOU,·April16, 1998 PAGE417·. :y 

## ./ ·' ! I 

### B. Removalor Reclassification ofWaterbodies DEQ will propose removal·ofwaterbodies (Figure 1) on the 303(d) list when:· (a) additional data indicates that the waterbody is not in violation, (b) water quality parameters are found to be in violation for reasons otherthan human activities, (c) TNIDL's, or water quality management plans ortheir equivalents, have been established in compliance with the Clean Water Act §303, or (d) the FPA, forest practice rules and B11P's are found to be adequate for agiven water quality parameter in a given basin viathe statewide demonstration orwatershed based

**~emonstration** (see section II above) and all land affecting the listed waterbody is deemed forestland that is regulated under the FPA. Forestbasins that have water quality impairment due to legacy conditions that 

### will notbe correctedby the currentB11Ps alone, remain listed withtheir present status until voluntary or incentive based actions are implemented.that are intended to restore watershed conditions such that water quality Standards can be met. 

## IV. Voluntary and Incentive-Based Approaches DEQ and ODF 

### will workjointly withlandowners and watershed councils, as resources pernrit, to use innovative approaches to resolving water quality problems. DEQ and ODF 

### will use other pollution control requirements when appropriate to restore watershed conditions such that water quality standards can be met in waterbodies listed under Section 303(d) ofthe·CleanWater Act. These pollution programs include but are·not limited to the following: 1. OregonLaws 1997, ch. 553, The GreenPernrits Act,; 2. OregonLaws 1995, ch. 413, TheForest Stewardship Act,; 3. OregonLaws 1997, ch. 7, Healthy Streams Partnership and the OregonPlan for Salmon and Watersheds; 4. DEQ'sEnvironmental Management Systems Incentives Project; 5. Habitat ConservationPlans adopted and approved under the Endangered Species Act; 6. ProjectXL agreements with the EPA:, and 7. Pollution Prevention Partnership agreements with theEPA Some ofthese alternative approaches 

### will become critical and complementary to the forest practices program when attempting to restore water quality in streams with significantlegacy 

### DEQIODF:WJOU;April16, 1998 

### PAGE517conditions caused by past actions such as channel simplification from splash damming and stream cleaning. 

### V. Other key coordination points for DEQ and ODF
There are two otherissues that will require.special coordination betweenDEQ and ODF These coordination issues regard: · 1. OutstandingResource Water designations and management measures, and 2. Coordination between the two agencies when there is a land use conversion. Both agencies agree to open discussion on how to coordinate on these issues but they are separate issues that are not covered by this particularMOU.



### VI. Signature.s

ames E. Brown, StateForester OregonDepartment ofForestry

Date: 

# t£10 J> Marsh, Director 0 ego Department of EnVIronmental Quality
Da.te: 

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....I

# 7- 

# t'ff

DEQIODFNJOU; Apri/16, 1998 PAGE 617DEQ Establishes water quality standards and monitors water9odies for WQS violations 

### Scenarios for changing

**~** 

### listing status or dec71 Wlter Quality Umited INaterbodies 303 (d) list 

# I fODF involvement'
.



### ~
·Further data analy-sis Evidence forVVQS violation stands scrutiny and indicates waterbody meets violation due to human factors WQS orviolation due to non

# t human factors. DEQ 'hill propose removal from 303d Basins upstream oflisted water list (See text III:A:a-b) bodies have signiffcant land Basins upstream oflisted · ownership on state and private forestland. bodies are entirely or mos1fy



# ~ **~** on federal foresland or nonforestland (See text III:A:a) WO.S violation for parameter not associated

# J 'Nith forest practices. (See text lll:A:al VVater Quality lmpainnent may be associated Wth forest practices. Examples include: New monitoring indicates VVQS notviolated 

# v temperature, sediment conditions etc
... orviolation due to non-human factors. DEQ ):;ependenceon



# ~ores!Pracfice rules and 'hill propose removal from 303d list (See text lfi:A:a-b and III:B:a-b) 

# ,._. Habitat conservation plans, water quality man- Program alone to meetVVater Quality agement plans, mtershed analysis etc
... ) requirements on state/private fores1fand deemed meets TMDL needs (See text IV). DEQ 'hill propose removal from 303d list (See 

# _/ 

# / ) text III:B:c) 

# '-- ODF and DEQ agree that ODF and DEQ agree that current rules/program is ODF and DEQ do not agree that Forest Practicesprogram adequate Vl/0. protection OOF rules are adequate. Set up does not address polfutant 'hill include program in plans monitoring. In meantime existing abatement adequately either for mixed land-use types. For rules constitute the VVO.S at basin, regional or basins 'Nith 1 00% forestland compliance mechanism. (See text state'Nide level. (See text DEQ will propose removal III:A:c) Ill:A:d) from 303d list (See text lll:A:a and Ill:A:d)



## ~ 

# ' 

# ---- ______.,. 

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Ifrules deemed inadequate either by aggreement of ODF and DEQ or by monitoring and further study, then modty rules at basin, regional, or state<Mde level under ORS 527.765, OAR 629-635-120, or by other rule or statute. (See text III:A:d} 

# ....------ ODF and DEQ agree that

**n~** rules/program is adequate Vl/0. protection. ODF will include program in basin plans for mixed ownerships. Forpure forestland ownerships, DEQ will propose removal from 303d list (See text III:B:d} 

### Figure 1. Treatment ofwaterbodies wth forestland and mixed landuse and ownership lands listed as water quality limited underthe 303(d) 

### list

DEQIODFft!JOU; April16, 1998 PAGE 717 

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