Divisions 41 and 42 Proposed Rule Changes

Overview

The Environmental Quality Commission (EQC) issued a directive to Department of Environmental Quality (DEQ) to develop rules or other implementation strategies to reduce toxic pollution from sources not regulated under permits under the federal Clean Water Act. Pursuant to this directive, DEQ is considering a number of items for inclusion in the toxics standards rulemaking package. One of the items is a package of rule revisions to Divisions 41 and 42. The intent of the rule revisions to Divisions 41 and 42 is to clarify DEQ’s regulatory authority to control nonpoint sources of pollution.

1.  Clarify that nonpoint sources must meet Water Quality Standards and

2.  Clarify that nonpoint sources must meet TMDL load allocations

3.  Clarify that TMDL load allocations could be assigned to air and land sources

The following rules under Divisions 41 and 42 are proposed to be amended.

340-041-0007 Statewide Narrative Criteria

340-041-0061 Other Implementation of Water Quality Criteria

340-042-0080 Implementing a Total Maximum Daily Load

340-42-0040 Establishing Total Maximum Daily Load

DEQ considered adding a definition of forest activities that are not covered under the Forest Practices Act in Division 41. Due to the complexity of the regulations and exceptions, however, DEQ determined that the best approach to clarify forest activities that are not applicable to Forest Practices Act is through a memo or a fact sheet rather than in a rule. This item is therefore no longer included in the rule package.

Proposed Rule Changes

Oregon Revised Statutes such as ORS 527 and 568 describe the mechanisms for forestry and agricultural nonpoint sources to meet applicable water quality standards. The sections under Division 41 do not, however, explain the goal of those mechanisms. In order to clarify the intent of those statutes and how nonpoint sources are expected to meet water quality standards and TMDL load allocations, DEQ proposes to revise sections of Divisions 41 and 42. In addition, DEQ proposes to provide further explanation under TMDL rule as to how agricultural and forestry nonpoint sources can comply with TMDL load allocations.

340-041-0007 Statewide Narrative Criteria

DEQ proposes the following rule language to clarify the expectation that logging and forest management activities must be conducted in a way to meet the water quality standards. Proposed language for 7/15 meeting differs from the current and previously proposed draft language to recognize that all forest management activities including those that occur on federal forest lands are subject to the water quality standards. Language following the broader statement is narrowly tailored to the existing statutes related to state and private forestlands.

Current Language

340-041-0007(5) Logging and forest management activities must be conducted in accordance with the Oregon Forest Practices Act to minimize adverse effects on water quality.

Proposed Language for 7/15 Meeting

340-041-0007(5) Logging and forest management activities must be conducted in accordance with the Oregon Forest Practices Act to minimize adverse effects on water quality. water quality standards and implementing rules established by the Environmental Quality Commission. Nonpoint source discharges of pollutants from forest operations on state and private forest lands are subject to best management practices and other control measures established by the Oregon Board of Forestry as provided in ORS 527.765 and 527.770. Forest operations conducted in good faith compliance with the best management practices and control measures established under the Forest Practice Act are generally deemed not to cause violations of water quality standards as provided in ORS 527.770. Forest operations may be subject to load allocations established under ORS 468B.110 and OAR 340-042, however, to the extent needed to implement the federal Clean Water Act.

Proposed Language for 7/15 meeting without track changes

340-041-0007(5) Logging and forest management activities must be conducted in accordance with the water quality standards and implementing rules established by the Environmental Quality Commission. Nonpoint source discharges of pollutants from forest operations on state and private forest lands are subject to best management practices and other control measures established by the Oregon Board of Forestry as provided in ORS 527.765 and 527.770. Forest operations conducted in good faith compliance with the best management practices and control measures established under the Forest Practice Act are generally deemed not to cause violations of water quality standards as provided in ORS527.770. Forest operations may be subject to load allocations established under ORS 468B.110 and OAR 340-042, however, to the extent needed to implement the federal Clean Water Act.

340-041-0061 Other Implementation of Water Quality Criteria

DEQ proposes to change sections (11) and (12) of this rule to clarify DEQ’s authority around nonpoint source regulation and to describe how water quality standards are generally implemented on agricultural and forest lands. Proposed rule language for 7/15 meeting reflects DEQ’s further consideration to communicate the intent of related statutes and rules.

Current Language for forestry

340-041-0061(11) Forestry on state and private lands. For forest operations on state or private lands, water quality standards are intended to be attained and are implemented through best management practices and other control mechanisms established under the Forest Practices Act (ORS 527.610 to 527.992) and rules thereunder, administered by the Oregon Department of Forestry. Therefore, forest operations that are in compliance with the Forest Practices Act requirements are (except for the limits set out in ORS 527.770) deemed in compliance with this division. DEQ will work with the Oregon Department of Forestry to revise the Forest Practices program to attain water quality standards.

Proposed Language for forestry for 7/15 Meeting

340-041-0061(11) Forestry on state and private lands. Nonpoint source discharges of pollutants from For forest operations on state or private lands are subject to, water quality standards are intended to be attained and are implemented through best management practices and other control measures mechanisms established by the Oregon Department of Forestry under the Forest Practices Act (ORS 527.610 to 527.992). and rules thereunder, administered by the Oregon Department of Forestry. Therefore, fSuch forest operations, when conducted in good faith that are in compliance with the Forest Practices Act requirements are generally deemed not to cause violations of water quality standards as provided in (except for the limits set out in ORS 527.770). Forest operations on state and private lands may be subject to load allocations under ORS 468.110 and OAR 340, Division 42 to the extent necessary to implement the federal Clean Water Act. deemed in compliance with this division. DEQ will work with the Oregon Department of Forestry to revise the Forest Practices program to attain water quality standards.

Proposed language for forestry for 7/15 Meeting without track changes

340-041-0061(11) Forestry on state and private lands. Nonpoint source discharges of pollutants from forest operations on state or private lands are subject to best management practices and other control measures established by the Oregon Department of Forestry under the Forest Practices Act (ORS 527.610 to 527.992). Such forest operations, when conducted in good faith compliance with the Forest Practices Act requirements are generally deemed not to cause violations of water quality standards as provided in ORS 527.770. Forest operations on state and private lands may be subject to load allocations under ORS 468.110 and OAR 340, Division 42 to the extent necessary to implement the federal Clean Water Act.

Current Language for agriculture

340-041-0061(12) Agricultural water quality management plans to reduce agricultural nonpoint source pollution are developed and implemented by the Oregon Department of Agriculture (ODA) through a cooperative agreement with the department to implement applicable provisions of ORS 568.900 to 568.933 and 561.191. If the department has reason to believe that agricultural discharges or activities are contributing to water quality problems resulting in water quality standards violations, the department may consult with the ODA. If water quality impacts are likely from agricultural sources and the department determines that a water quality management plan is necessary, the director may write a letter to the director of the ODA requesting that such a management plan be prepared and implemented to reduce pollutant loads and achieve the water quality criteria.

Proposed Language for agriculture for 7/15 Meeting

340-041-0061(12) In areas subject to aAgricultural water quality management plans and rules to reduce agricultural nonpoint source pollution are developed and implemented by the Oregon Department of Agriculture (ODA) through a cooperative agreement with the department to implement applicable provisions of under ORS 568.900 to 568.933 and 561.191, the department will look to the ODA to establish appropriate best management practices (BMPs) or other control measures for agricultural nonpoint source discharges . TIf the department may take additional implementation or enforcement actions, however, if has reason to believe that agricultural discharges or activities are causing or contributing to water quality problems resulting in water quality standards violations. Before taking such action, the department may will ordinarily consult with the ODA and request that an agricultural . If water quality impacts are likely from agricultural sources and the department determines that a water quality management plan be modified and implemented to further reduce pollutant loads and achieve the water quality criteria. The department may also assign specific load allocations and implement measures needed for agricultural nonpoint sources to implement the load allocations under ORS 468B.110 and the OAR 340, Division 42.is necessary, the director may write a letter to the director of the ODA requesting that such a management plan be prepared and implemented to reduce pollutant loads and achieve the water quality criteria.

Proposed Language for agriculture for 7/15 Meeting without track changes

340-041-0061(12) In areas subject to agricultural water quality management plans and rules developed and implemented by the Oregon Department of Agriculture (ODA) under ORS 568.900 to 568.933 and 561.191, the department will look to the ODA to establish appropriate best management practices (BMPs) or other control measures for agricultural nonpoint source discharges. The department may take additional implementation or enforcement actions, however, if agricultural discharges or activities are causing or contributing to water quality standards violations. Before taking such action, the department will ordinarily consult with the ODA and request that an agricultural water quality management plan be modified and implemented to further reduce pollutant loads and achieve the water quality criteria. The department may also assign specific load allocations and implement measures needed for agricultural nonpoint sources to implement the load allocations under ORS 468B.110 and the OAR 340, Division 42.

340-042-0080 Implementing a Total Maximum Daily Load

DEQ proposes to provide DEQ’s expectations under this rule for agricultural and forestry nonpoint sources. This revision also identifies how agricultural and forestry nonpoint sources will meet TMDL load allocations under “Implementation-Ready” TMDLs. The revised rule language therefore will help address the following stakeholder proposals to provide assurance for adequacy of conservation measures when used in conjunction with “Implementation-Ready” TMDLs. (See TMDL issue paper for more details)

#8  Require that surrogate measures be clear and easily applied as to how to meet TMDL load allocations

#11  Develop design specifications for riparian buffer strips and require in Water Quality rules

#12  Add that agricultural land owners must implement specific practices to be in compliance with Water Quality Standards

Current Language

340-042-0080(2) The Oregon Department of Forestry will develop and enforce implementation plans addressing state and private forestry sources as authorized by ORS 527.610 through 527.992 and according to OAR chapter 629, divisions 600 through 665. The Oregon Department of Agriculture will develop implementation plans for agricultural activities and soil erosion and enforce associated rules as authorized by ORS 568.900 through 568.933 and according to OAR chapter 603, divisions 90 and 95.

Proposed Language for 7/15 Meeting

340-042-0080(2) The department will request that the Oregon Department of Forestry will serve as the designated management agency for the purpose of developing and enforceing implementation plans for nonpoint source pollution from addressing state and private forestlands. ry sources as authorized by ORS 527.610 through 527.992 and according to OAR chapter 629, divisions 600 through 665. The department will request that the Oregon Department of Agriculture serve as as the designated management agency for purposes of will developing and enforcing implementation plans for nonpoint sources of pollution within areas subject to Agricultural Water Quality Management Area Plans developed pursuant to ORS 561.191 and agricultural activities and soil erosion and enforce associated rules as authorized by ORS 568.900 through 568.933 and according to OAR chapter 603, divisions 90 and 95. The department will notify the Department of Forestry or Department of Agriculture, as appropriate, if it determines that existing best management practices or other control measures under the rules implementing the Forest Practices Act or the rules implementing an Agricultural Water Quality Management Area Plan are not adequate to achieve load allocations established under the TMDL. In such cases, the department may impose additional requirements until the designated management agency adopts new or additional best management practices or control measures that are adequate to achieve the load allocation.

Proposed Language for 7/15 Meeting without track changes

340-042-0080(2) The department will request that the Oregon Department of Forestry will serve as the designated management agency for the purpose of developing and enforcing implementation plans for nonpoint source pollution from state and private forestlands. The department will request that the Oregon Department of Agriculture serve as the designated management agency for purposes of developing and enforcing implementation plans for nonpoint sources of pollution within areas subject to Agricultural Water Quality Management Area Plans developed pursuant to ORS 561.191 and ORS 568.900 through 568.933. The department will notify the Department of Forestry or Department of Agriculture, as appropriate, if it determines that existing best management practices or other control measures under the rules implementing the Forest Practices Act or the rules implementing an Agricultural Water Quality Management Area Plan are not adequate to achieve load allocations established under the TMDL. In such cases, the department may impose additional requirements until the designated management agency adopts new or additional best management practices or control measures that are adequate to achieve the load allocation.

340-42-0040 Establishing Total Maximum Daily Load

Although DEQ has authority to do so already, its ability to identifying significant air and land sources and assign Waste Load Allocations (WLAs) for point sources and Load Allocations (LA) for NPS is not explicit in the Division 42 TMDL rule. DEQ proposes to revise this rule to clarify DEQ’s authority to assign an individual load allocation to air and land sources in TMDLs.

It should be noted that DEQ made a policy decision to limit the scope of the toxics water quality standards rulemaking to divisions under water program. The actual regulatory mechanism for addressing TMDL allocations through other media programs still needs to be defined and described. The approach described below is one of potential strategies that DEQ will consider during Toxics Reduction Strategy development.

Current Language

340-042-0040(h) Load allocations. This element determines the portions of the receiving water's loading capacity that are allocated to existing nonpoint sources, or to background sources. Load allocations are best estimates of loading, and may range from reasonably accurate estimates to gross allotments depending on the availability of data and appropriate techniques for predicting loading. Whenever reasonably feasible, natural background and anthropogenic nonpoint source loads will be distinguished from each other.

Proposed Language for 7/15 Meeting

340-042-0040(h) Load allocations. This element determines the portions of the receiving water's loading capacity that are allocated to existing or potential nonpoint sources, including runoff, deposition, soil contamination and groundwater discharges, or to background sources. Load allocations are best estimates of loading, and may range from reasonably accurate estimates to gross allotments depending on the availability of data and appropriate techniques for predicting loading. Whenever reasonably feasible, natural background, long-range transport and anthropogenic nonpoint source loads will be distinguished from each other.

Proposed Language for 7/15 Meeting without track changes

(h) Load allocations. This element determines the portions of the receiving water's loading capacity that are allocated to existing or potential nonpoint sources, including runoff, deposition, soil contamination and groundwater discharges, or to background sources. Load allocations are best estimates of loading, and may range from reasonably accurate estimates to gross allotments depending on the availability of data and appropriate techniques for predicting loading. Whenever reasonably feasible, natural background, long-range transport and anthropogenic nonpoint source loads will be distinguished from each other.

Relevant Statutes and Administrative Rules

Forestry

527.765 Best management practices to maintain water quality; rules.

(1) The State Board of Forestry shall establish best management practices and other rules applying to forest practices as necessary to insure that to the maximum extent practicable nonpoint source discharges of pollutants resulting from forest operations on forestlands do not impair the achievement and maintenance of water quality standards established by the Environmental Quality Commission for the waters of the state. Such best management practices shall consist of forest practices rules adopted to prevent or reduce pollution of waters of the state. Factors to be considered by the board in establishing best management practices shall include, where applicable, but not be limited to:

(a) Beneficial uses of waters potentially impacted;

(b) The effects of past forest practices on beneficial uses of water;

(c) Appropriate practices employed by other forest managers;

(d) Technical, economic and institutional feasibility; and

(e) Natural variations in geomorphology and hydrology.

(2) The board shall consult with the Environmental Quality Commission in adoption and review of best management practices and other rules to address nonpoint source discharges of pollutants resulting from forest operations on forestlands.

(3)(a) Notwithstanding ORS 183.310 (8), upon written petition for rulemaking under ORS 183.390 of any interested person or agency, the board shall review the best management practices adopted pursuant to this section. In addition to all other requirements of law, the petition must allege with reasonable specificity that nonpoint source discharges of pollutants resulting from forest operations being conducted in accordance with the best management practices are a significant contributor to violations of such standards.

(b) Except as provided in paragraph (c) of this subsection, if the board determines that forest operations being conducted in accordance with the best management practices are neither significantly responsible for particular water quality standards not being met nor are a significant contributor to violations of such standards, the board shall issue an order dismissing the petition.

(c) If the petition for review of best management practices is made by the Environmental Quality Commission, the board shall not terminate the review without the concurrence of the commission, unless the board commences rulemaking in accordance with paragraph (e) of this subsection.

(d) If a petition for review is dismissed, upon conclusion of the review, the board shall issue an order that includes findings regarding specific allegations in the petition and shall state the board’s reasons for any conclusions to the contrary.

(e) If, pursuant to review, the board determines that best management practices should be reviewed, the board shall commence rulemaking proceedings for that purpose. Rules specifying the revised best management practices must be adopted not later than two years from the filing date of the petition for review unless the board, with concurrence of the Environmental Quality Commission, finds that special circumstances require additional time.

(f) Notwithstanding the time limitation established in paragraph (e) of this subsection, at the request of the Environmental Quality Commission, the board shall take action as quickly as practicable to prevent significant damage to beneficial uses identified by the commission while the board is revising its best management practices and rules as provided for in this section. [1991 c.919 §20; 2003 c.75 §95; 2003 c.749 §11]

527.770 Good faith compliance with best management practices not violation of water quality standards; subsequent enforcement of standards. A forest operator conducting, or in good faith proposing to conduct, operations in accordance with best management practices currently in effect shall not be considered in violation of any water quality standards. When the State Board of Forestry adopts new best management practices and other rules applying to forest operations, such rules shall apply to all current or proposed forest operations upon their effective dates. However, nothing in this section prevents enforcement of water quality standards against a forest operator conducting operations after the time provided in ORS 527.765 (3)(e) for adoption of revised best management practices if the board either has not adopted revised management practices or has not made a finding that such revised best management practices are not required. [1991 c.919 §21; 2003 c.749 §12]

Agriculture

ORS Chapter 568 — Soil and Water Conservation; Water Quality Management

568.930 Agricultural activities subject to plan requirements; consultation with Environmental Quality Commission; review and revision of plans.

(1) Landowners shall conduct all agricultural activities on agricultural lands within the boundaries of an area subject to a water quality management plan in full compliance with the rules implementing the plan and with all the rules and standards of the Environmental Quality Commission relating to water pollution control. In addition to any other remedy provided by law, any violation of those rules or standards shall be subject to all remedies and sanctions available to the Department of Environmental Quality or the Environmental Quality Commission.

(2) The State Department of Agriculture and the State Board of Agriculture shall consult with the Department of Environmental Quality or the Environmental Quality Commission in the adoption and review of water quality management plans and in the adoption of rules to implement the plans.

(3)(a) The Environmental Quality Commission may petition the State Department of Agriculture for a review of part or all of any water quality management plan and rules implementing the plan. The petition must allege with reasonable specificity that the plan or the rules are not adequate to achieve compliance with applicable state and federal water quality standards.

(b) The State Department of Agriculture, in consultation with the State Board of Agriculture, shall complete its review of a petition submitted under paragraph (a) of this subsection within 90 days of the date of the filing of the petition for review. The State Department of Agriculture may not terminate the review without the concurrence of the Environmental Quality Commission unless the department initiates revisions to the rules implementing the water quality management plan that address the issues raised by the Environmental Quality Commission. If the State Department of Agriculture adopts any revisions in response to a petition by the Environmental Quality Commission, the department shall adopt the revisions not later than two years from the date the Environmental Quality Commission submits the petition, unless the department, with the concurrence of the Environmental Quality Commission, finds that special circumstances require additional time.

(4) A water quality management plan and rules implementing the plan that pertain to a ground water management area shall be subject to the coordination requirements of ORS 468B.162. [1993 c.263 §13; 1999 c.59 §179; 2001 c.594 §6]

561.191 Program and rules relating to water quality.

(1) The State Department of Agriculture shall develop and implement any program or rules that directly regulate farming practices, as defined in ORS 30.930, that are for the purpose of protecting water quality and that are applicable to areas of the state designated as exclusive farm use zones under ORS 215.203 or other agricultural lands in Oregon, including but not limited to rules related to:

(a) Protection of the quality of surface or ground water;

(b) Wellhead protection areas;

(c) Coastal zone management areas;

(d) Areas of ground water concern; and

(e) Ground water management areas.

(2) Any program or rules adopted by the State Department of Agriculture under subsection (1) of this section shall be designed to assure achievement and maintenance of water quality standards adopted by the Environmental Quality Commission.

(3) If two or more state agencies are required to adopt rules under ORS 468B.150 to 468B.190, the agencies:

(a) Shall consult with one another and coordinate the rules; and

(b) May consolidate the rulemaking proceedings.

(4) Nothing in this section is intended to change or reduce the authority of the Water Resources Commission or the Water Resources Department under ORS chapters 536 to 543. [1995 c.690 §6a]