As the result of litigation, the state of Oregon, the EPA, and the National Oceanic and Atmospheric Administration (NOAA) find themselves in an unusual adversarial position over the agencies’ proposed disapproval of the state’s program to control nonpoint source pollution of coastal waters.
The proposed disapproval is based on only three measures in the state’s overall plan; the remaining 60 measures have received federal approval. Oregon notes that 10 other states with coastal programs have received conditional approval, as has Oregon. “But the EPA and NOAA are not planning to take final action on those plans without first working to resolve issues in a thoughtful, considered way,” says the state. “Oregon would be in the same position if it were not for EPA and NOAA’s settlement of litigation.”
Litigation forces fed’s hand
The litigation in question was initiated in 2009 by Northwest Environmental Advocates (NWEA), which sued the EPA and the NOAA over the agencies’ conditional approval of Oregon’s coastal nonpoint pollution plan. Oregon began submitting elements of its plan for approval to the EPA and NOAA starting in 1995. Under the Coastal Zone Act Reauthorization Amendments (CZARA), states receive federal funding to implement EPA/NOAA-approved measures to control nonpoint pollution to coastal waters. The NWEA alleged that Oregon’s program was not sufficient to meet federal requirements under the CZARA and that the EPA and NOAA had to either approve or disapprove Oregon’s program rather than continue to work with the state to iron out any remaining differences.
A federal judge agreed with the NWEA and ordered the federal agencies to first propose to either approve or disapprove Oregon’s program and then issue a final decision by May 15, 2014. The agencies published their proposed disapproval in the December 20, 2013, Federal Register.
Logging and old forest roads
According to the federal agencies, the improvements needed in the Oregon program are for controlling impacts from timber harvesting, including measures for protecting small- and medium-sized streams; measures to protect landslide-prone areas; and measures to address runoff from forest roads built before modern construction and drainage requirements. Oregon also needs to ensure that septic systems are inspected and properly maintained and that sediment runoff from new development does not enter rivers and streams. The NOAA and EPA also have concerns about nonpoint source impacts from agricultural activities and are also inviting comments from the public on the state’s agricultural program.
Water improving, says Oregon
Oregon has argued that its coastal program complies with the CZARA. “More importantly, water quality in Oregon’s coastal areas is high, and it is improving—and has been improving for at least 15 years,” says the state. “Federal law requires EPA and NOAA to approve or disapprove Oregon’s program based on the state’s commitments to implementing specific pollution management measures rather than looking at whether a state’s program is actually succeeding on the ground. State officials maintain that EPA and NOAA, in their proposed ruling, are asking the state to adopt one-size-fits-all measures that are not tailored to preventing problems or to addressing specific issues in specific watersheds.”
According to Oregon, disapproval of its program would result in a 30 percent cut in the $2 million Clean Water Act Section 319 grant funds the state currently receives each year and a 30 percent cut in the $2 million in CZARA Section 306 funds it also receives annually.
“Historically, NOAA, EPA and the states have worked together to develop fully approvable programs,” says the EPA and NOAA. “Oregon has expressed a desire to continue working with NOAA and EPA towards full approval, and the federal agencies stand ready to help Oregon achieve that goal.”
An Oregon-issued fact sheet discussing the state’s coastal program and the federal actions