Oregon Revised Statute, ORS 468B,  by Doug Whitsett    

posted to KBC 10/7/03 The May 29, 1993 records from the Oregon House Committee on Natural Resources clearly state that SB 1010 was developed because "court cases" assumed that the 1972 Federal Water Pollution Prevention Act (Clean Water Act) gave authority to regulate non-point source pollution. Because of this "court case’ created assumption, a perceived urgency existed to create Oregon legislation that would prevent the strong arm of the Environmental Protection Agency (EPA) from creating and enforcing rules regulating agricultural run off. As a direct result, SB 1010 was written to confer Oregon regulatory authority over agricultural non-point sources of pollution to the Oregon Department of Agriculture (ODA). Development of Area Water Quality Management Plans (Area WQMP’s) is a statutory requirement resulting from the SB 1010 legislation.

The Ninth Circuit Court of Appeals has subsequently clearly 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.

Therefore, SB 1010 was created under false premises. The statute established state regulatory authority over non-point source agricultural pollution where no federal regulatory authority existed. Further, according to a 1996 Attorney Generals opinion from the Kulongoski Department of Justice, Oregon Revised Statute 468B (ORS 468B) conferred no regulatory authority over agricultural runoff or agricultural practices to the Oregon Department of Environmental Quality.

ORS 468B was written pursuant to Oregon legislation enabling the state to enforce the provisions of the 1972 Clean Water Act. ORS 468B was written to inclusively address all point sources of pollution. The intent of the legislation and subsequent law did not address non-point sources. It certainly did not address agricultural run off or agricultural practices.

Not surprisingly, the plain language of ORS 468B is not appropriate for regulation of non-point agricultural sources of pollution by ODA under their state granted authority pursuant to Oregon Senate Bill 1010.

We believe that inclusion of ORS 468B language in the Area WQMP’s may have dire unintended consequences for irrigators. In fact, we believe that inclusion of this language will extend public nuisance status to commonly accepted agricultural practices. ORS 468B 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.

Broadly interpreted, as it certainly will be by third party activists, inclusion

of this statute as an Area Rule may prevent such common accepted agricultural practices as flood irrigation, pasturing of livestock in an area where runoff could carry their waste products to the waters of the state, field burning, and even planting trees along the banks of streams where their leaves may fall into the water. Even more extreme and ridiculous examples are readily contemplated.

ODA now possesses statutory authority to regulate non- point sources of pollution from agricultural practices. WQMP Area Rules have all of the authority of Oregon Administrative Rules. ORS 468B language included as an Area Rule is clearly inappropriate for regulation of agricultural practices.

ODEQ plans completion of Total Maximum Daily Loads (TMDL’s) for the water quality limited Lost River and Klamath River by June of 2005. Once these load allocations are established, the Area WQMP Area Rules will represent the regulatory authority over agricultural practices within those areas.

ODA Director Katie Coba has indicated that ODA only needs the ORS 468B language in order to prosecute the really bad actors and has no intention of enforcing the plain wording of the ORS 468B statute as included in the Area WQMP’s. Will the ODA commit contempt of court when ordered to do so by an activist judge pursuant to a third party lawsuit?

Why does ODA insist on the inclusion of ORS 468B in each and every Area WQMP 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:

(3) "Pollution" or "water pollution" means such alteration of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, silt or odor of waters,

or discharge of any liquid, gaseous, solid, radioactive or other substance into any waters of the state, which tends to, either by itself or in connection with any other substance, create a public nuisance or which tends to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational or other legitimate beneficial uses or to livestock, wildlife, fish or other aquatic life or habitat thereof.

(7) "Wastes" mean sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive or other substances which will or may cause pollution or tend to cause pollution of any waters of the state.

(8) "Water or "the waters of the state" include lakes, bays, ponds, impounding reservoirs, springs, wells, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Pacific Ocean within the territorial limits of the State of Oregon and all other bodies of surface or underground waters, natural or artificial, inland or coastal, fresh or salt, public or private (except those private waters which do not combine or effect a junction with natural surface or underground waters) which are wholly or partially within or bordering the state or within its jurisdiction.

(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

468B.015 Policy Whereas pollution of the waters of the state constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish and aquatic life and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water, and whereas the problem of water pollution is this state is closely related to the problem of water pollution in adjoining states, it is hereby declared to be the public policy of the state:

1. To conserve the waters of the state.
2. To protect, maintain and improve the quality of the waters of the state for public water supplies, for the propagation of wildlife, fish and aquatic life and for domestic, agricultural, industrial, municipal, recreational and other legitimate beneficial uses.
3. To provide that no waste be discharged into any waters of this state without first receiving the necessary treatment or other corrective action to protect the legitimate beneficial uses of such waters.
4. To provide for the prevention, abatement and control of new or existing pollution.
5. To cooperate with other agencies of the state, agencies of other states and the federal government in carrying out these objectives.

(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:

1. Cause pollution of any waters of the state or place or caused to be placed any wastes in a location where such wastes are likely to escape or be carried into the waters of the state by any means.
2. Discharge any wastes into the waters of the state if the discharge reduces the quality of such waters below the water quality standards established by rule for such waters by the Environmental Quality Commission.

1. The Environmental Quality Commission may perform or cause to be performed any acts necessary to be performed by the state to implement within the jurisdiction of the state the provisions of the Federal Water Pollution Control Act as amended, and federal regulations or guidelines issued pursuant to the Act.
2. The State Department of Agriculture may perform or cause to be performed any acts necessary to be performed by the state to implement the provisions of the Federal Water pollution control Act as amended, and any federal regulations or guidelines issued pursuant to the Act, relating to the control and prevention of water pollution from livestock and other animal-based agricultural operations.