Date: 1988-10-07
Speaker: FRED HANSEN (republican)
Chamber: S

Director. Department of Environmental Quality. State of Oregon. Portland. OR. DEAR MR. HANSEN: As you may know. we are working on legislation to designate over 40 Oregon rivers and streams for protection under the National Wild and Scenic Rivers Act. It is important that we provide these outstanding national resource waters the recognition and protection they deserve. At the same time. it is imperative that we do so in a fashion that minimizes any adverse effects on Oregons economy and does not result in any unintended Impacts on upstream activities. We are. therefore. writing to you to make sure that we have an accurate understanding of the applicability of Oregons water quality standards. including the states antidegradation policy. to the control of activities that have the potential to generate nonpoint source pollution in areas upstream from designated national wild and scenic river segments. This is a concern raised in testimony by forest landowners. including the USDA Forest Service. Under existing federal Environmental Protection Agency policy. affirmed most recently in an August 19. 1987. EPA policy memorandum. EPA has stated in relevant part. that: "EPAs water quality standards regulation (40 CFR 131) provides that State adopted water quality standards shall include designated beneficial uses and water quality criteria to protect those uses as well as include an antidegradation policy. It is Intended that proper installation of State approved BMPs [best management practices] will achieve water quality standards. Therefore. water quality standards are to be used to measure the effectiveness of BMPs. In the review and revision of water quality standards as provided for in the CWA [Clean Water Act]. the State should ensure that water quality standards are achievable and that water quality criteria reflect what is needed to assure protection of beneficial uses. As provided for in EPAs National Nonpoint Source Policy Statement. there should be flexibility in water quality standards to address the impact of time and space components of NPS as well as naturally occurring events. This involves the consideration of the variability of natural conditions. magnitude and frequency of impact. and level of acceptable risk. "For proposed management actions. BMPs designed and Implemented in accordance with a State approved process will normally constitute compliance with the CWA. The CWA does not Itself directly establish a mechanism for enforcing WQSs directly against NPS. BMPs developed under a State approved process may be used as performance standards for proposed actions. Applicable water quality standards along with water quality monitoring should be used to measure the effectiveness of BMPs. "Once BMPs have been approved by the State. the BlMPs become the primary mechanism for meeting water quality standards. Proper installation. operation and maintenance of State approved BMPs are presumed to meet a landowners or managers obligation for compliance with applicable water quality standards." (Emphasis added). Oregons water quality standards. promulgated by the EPA properly reflect this direction. At OAR 34041026 (1)(b)(7) the rules require that "logging and forest management activities shall be conducted in accordance with the Oregon Forest Practices Act so as to minimize adverse effects on water quality." It is our understanding that. consistent with existing federal EPA policy. the states forest practice rules are the stateapproved BMPs and. therefore. "are presumed to meet a landowners or managers obligation for compliance with applicable water quality standards." including the states antidegradation policy at OAR 34041026 (1)(a). The situation on federal lands administered by the USDA Forest Service and the Bureau of Land Management is similar. The aforementioned EPA policy memorandum suggests that: "States and operators. managers and/or owners of large tracts of private or public land containing areas of high quality water. where changes in the use or management of the land could pose a threat of degradation. may find it advantageous to negotiate and establish comprehensive planning and operating procedures for the NPS management of such tracts or major portions thereof. consistent with this guidance. Such agreements would include. among other things. understanding regarding monitoring responsibilities. BMP implementation and plan enforcement. Such procedures could be Incorporated into memoranda of understandings (MOUs) between the parties. which should be reviewed and reexecuted periodically to allow for changes in conditions and/or policy." It is our understanding that both the USDA Forest Service and the Bureau of Land Management have entered In!.o such memoranda of understanding. with the DEQ. and that the requirements and practices contained in Forest Service and BIM timber sales contracts are deemed to be equivalent to those in the state forest practices rules. It is our further understanding with respect to the Forest Service. that the state is reviewing each draft plan prepared under the provisions of the National Forest Management Act of 1976 with the expressed purpose of assuring. among other things. that any new land allocations. standards. or guidelines contained in the draft plans would not contribute to a violation of the states water quality standards. Based upon the provisions of the preferred alternatives in the draft plans. the Forest Service has informed us in testimony that the designation of wild and scenic river segments as contemplated in our bill should not. by itself. result in any additional restriction of forest management activities in areas upstream from the designated stream segments as a consequence of the provisions of OAR 34041026. The Forest Service is confident that existing mechanisms for working with the DEQ are adequate to assure compliance with the states water quality standards program without significant timber harvest impacts as the NFMA plans are put into final form. Would you please confirm whether our understanding of these matters is accurate. and whether the state concurs with the Forest Services assessment of the extent of any upstream impacts from the proposed legislation. It is our Intention to Include your response in the legislative history of the final bill so that there will be no confusion over the applicability or impact of Oregons water quality standards on streams above a segment designated In tile legislation. We may move to markup this bill as early as next week. Thank you for a prompt response to this inquiry. Sincerely.