Baker County Natural Resources Advisory Committee

1995 3^rd Street  

Baker City, OR 97814

March 21, 2011

Andrea Matzke

Oregon Department of Environmental Quality

Water Quality Division

811 SW 6^th Avenue

Portland, OR 97204

RE: Oppose DEQ Toxics Reduction Rulemaking Proposal

To: Oregon Environmental Quality Commission

The Baker County Natural Resource Advisory Committee (NRAC) is comprised of Baker County citizens representing various stakeholder interests of the Baker County economy; and is appointed by, and advisory to, the Baker County Board of Commissioners. The Baker County Board of Commissioners adopted the Baker County Natural Resources Plan on December 22, 2010. The Commissioners endorse the Baker County NRAC position in opposition to the proposed DEQ Toxics Reduction Rule.

Agriculture is one of the largest components of the Baker County economy, both in terms of annual gross sales income and property tax revenues. Baker County agriculture considers the proposed rules to be unnecessary; and further, creates an undue additional regulatory burden on its’ already good stewardship of the land and water quality. Baker County has a very pro-active water quality enhancement and protection program in place under the two Area Agricultural Water Quality Management Plans, which are reviewed biennially.

We feel the proposed plan is faulty for many reasons:

Federal Clean Water Act and nonpoint, agricultural pollution:

1.  Agricultural practices, under the Federal Clean Water Act, are considered nonpoint source pollution. Section 319, which regulates nonpoint pollution, requires “identifying best management practices and measures to control each category and subcategory of nonpoint sources” and “to reduce, to the maximum extent practicable, the level of pollution resulting from such category, subcategory and source.”

2.  In 1993, the Oregon legislature passed SB 1010 enacting the Agriculture Water Quality Management Act. It required landowners to prevent and control water pollution from agricultural activities and soil erosion. Area Agricultural Water Quality Management Plans were to be adopted specific to each watershed.

3.  The 1995 legislature passed SB 502 and 503 declaring the Oregon Department of Agriculture to be the sole agency responsible for developing and implementing “any program or rules that directly regulate farming practices … that are for the purpose of protecting water quality”

(ORS 561.191).

4.  Baker County, in compliance with SB 1010, developed Area Agricultural Water Quality Management Plans for the Powder-Brownlee watershed and the Burnt River watershed. Both are in compliance with their biennial reviews. In addition, the local Soil and Water Conservation Districts are very pro-active with projects to further protect the waters of the state from agricultural nonpoint pollution.

5.  The proposed rule would move from “maximum extent practicable” to a numeric value on an “implementation-Ready” TMDL. This is an arbitrary rule and measurement, and is in direct conflict with the wording of the Clean Water Act regarding nonpoint source agricultural actions.

We believe the DEQ is over-reaching, and is not authorized, nor intended, to adopt such rules under the Clean Water Act or Oregon statutes. In fact, ORS 468.010 to 110 does not authorize DEQ to regulate nonpoint sources to numeric values.

Fish Consumption Rate calculation is faulty:

While EPA increased their fish consumption default rates nationally to 17.5 g/day, it gave latitude to states to base their numbers on local consumption data, wherever possible.

DEQ is proposing to raise the consumption rates for Oregonians by 10 fold, and it is not based on sound science. In addition, it does not consider consumption of fish which spend a great deal of their lives in the ocean, and thus are only minuscularly influenced by the Columbia River and its tributaries. In addition, the rules do not give any allowance for pollution that may have been generated outside of the Oregon borders – Idaho and Washington.

DEQ stated in written format to a legislative hearing that:

1.  “They were not aware of any studies that quantify the fish consumption of all Oregonians”;

2.  “They were not aware of any studies documenting the harm to human beings related to toxins consumed through a fish-oriented diet”;

3.   “They relied on a Human Health Focus Group to recommend relying on 5 studies – four of which were conducted in the Pacific Northwest and one national study”;

4.  All of the 5 reports relied upon for the 175 g/day consumption recommendation, were full of disclaimer language, and one was only a review of literature.

Furthermore, based on information available, the NRAC questions the veracity of the survey methodologies, which likely skewed results and inflated consumption levels in relation to the total population.

We believe that the 10 fold higher recommendation than EPA’s recommended level is based on faulty science, and was driven by an unattainable desire for pristine Oregon standards.

Severe Economic Impact to Baker County:

Baker County farmers and ranchers have a long history of active participation in riparian and water quality enhancement projects and practices. For example, a group of local ranchers on the stretch of the Powder River through Baker Valley, constructed miles of off-stream waterers and riparian fencing to remove upwards of 8000 cows from drinking in the Powder River. There are numerous other examples of projects which benefited water quality, riparian habitat, and wildlife.

Imposition of the proposed new numeric rules will predictably put a halt to voluntary improvement practices. Landowners will no longer have the incentive of utilizing “best management practices” or “maximum extent practicable” to correct problems on their own lands. They will be working under a “one-size-fits-all” rule, which will carry severe penalties on situations that may very well be beyond their “practicable” control.

Arbitrary and capricious “Implementation-Ready “ TMDL’s will not take into consideration pollutants that are naturally occurring in the environment, and will be impossible for a farmer to reduce.

The Science Applications International Corporation report to DEQ states for nonpoint source and storm water costs “… the additional controls needed for compliance or the baseline could not be estimated. There are, however, indications that baseline compliance costs for nonpoint sources (i.e. agriculture) and storm water discharges could be substantial”. (Emphasis added)

While some segments of Oregon agriculture are presently doing better in gross sales (farm gate-receipts) than others, every segment is highly impacted by out-of-control fuel costs; increases in petroleum based input-costs (e.g., pesticides, fertilizer, lubricants and tires). In addition, state mandated minimum hourly labor costs as well as payroll costs have increased this year. Energy costs are rising, as new laws take effect on green energy requirements. In general, Oregon agriculture is as much in a recession as every other segment of the Oregon economy.

This is a “jobs-killing” rule change, and does not reflect the generally high quality of the waters of the state.

We urge you to not adopt the proposed “Toxics rule”, but instead to match the EPA recommendation of 17.5 g/day of fish consumption. Until peer reviewed, sound science protocols are used to accurately determine fish consumption – which gives consideration to fish consumed that spent a good portion of their lives in waters over which Oregon has no control, this process should be discontinued. It will be too harmful to the long-term economic recovery of Oregon. It is not scientifically justified.

Thank you for your consideration to our testimony.

Baker County Natural Resources Advisory Committee