The Clean Water Act of 1972 made it a lot harder for industrial facilities to dump large amounts of toxic materials into U.S. waterways with the institution of a permitting process with limits on toxic releases – it put a stop to many of the activities that led to Portland Harbor’s designation as a EPA high-priority Superfund Site – but gray areas in the act and the limited nature of resources used to enforce it could leave the Willamette River and other waterways across Oregon susceptible to a slew of continued contamination long after the harbor is cleaned up.
Studies repeatedly show that Oregonians identify water quality as their top environmental priority, but Oregon Department of Environmental Quality (ODEQ) assessments conclude that many Oregon waterways are far below acceptable water quality standards. The Willamette and Columbia rivers both contain harmful levels of arsenic, dioxin and other chemicals and have above-normal temperatures.
While tests of water samples taken from Oregon rivers, including the Willamette, indicate industrial pollution has declined, industrial facilities that have obtained federal wastewater permits continue to legally release treated wastewater into Oregon rivers. While ODEQ is tasked with monitoring permit holders, almost all the oversight and reporting required to ensure the facility’s wastewater doesn’t exceed its toxicity limits is performed by the facility’s staff. According to Burkhart, an ODEQ water quality inspector, his office performs on-site inspections of each permit-holding facility at a rate of once every two or five years, unless a facility is under enforcement action.
“A lot of people are surprised to find out that under the Clean Water Act, self-monitoring is a very big part of the program,” says Burkhart. “There is no way the city, EPA or ODEQ has the resources to go out there once a week. We rely on self monitoring.”
With official regulators lacking the resources necessary to visit facilities on a weekly basis, it’s left to employees at each permit-holding facility, or a contractor hired by the facility, to collect the required weekly samples of wastewater for testing. In each case, the samples they collect are sent to an independent lab for testing. The lab sends the test results directly back to the facility from which the sample came. It’s then up to a facility employee to summarize the lab report in a separate document, which he or she then signs and forwards to ODEQ. The original lab reports are kept on-site at the facility, and not sent to ODEQ. Upon its inspection every two or five years, ODEQ will conduct “quality control,” says Burkhart, by randomly selecting certain entries to make sure the facility staff are conducting the sampling and summarizing correctly.
Burkhart says that if a facility staffer really wanted to manipulate the numbers in a lab report, they could, but his department knows the little things to look for. He says people have falsified reports in the past, but he believes it’s a rare occurrence. “Usually we find they just weren’t doing it right. Either using the wrong instruments or taking water from the wrong location,” he says.
But if a staffer diluted a water sample on its way to the lab, the toxicity levels would come back much lower. Burkhart says, “It wouldn’t be obvious if someone diluted a sample, but it would be a huge risk because they would probably go to jail. It happened more frequently in the past, but it’s quite rare now.”
According to Portland Harbor Community Advisory Committee Chair Jim Robison, “ODEQ has a limited amount of actual investigative work that they can do.” He says they often rely on complaints submitted by private citizens and watchdog groups to know what to investigate.
Siltronic, located along the Willamette in Northwest Portland’s industrial district, made headlines earlier this year when the EPA ranked it as the number one polluter of Oregon waterways in 2012 when it legally dumped more than 350,000 pounds of nitrate compounds. That might seem like a lot, but it’s just a drop in the bucket compared to the amount of nitrates released into waterways from agricultural sources, and these sites are receiving far less attention than Siltronic as they are barely monitored, if at all. High levels of nitrates in drinking water can cause serious health problems. According to 2011 a risk assessment of Oregon public water systems conducted by ODEQ, nitrate contamination is an ongoing problem that’s “increasing in severity.”
While industrial facilities are required to purchase wastewater and storm water permits under the Clean Water Act, no such permits exist for agricultural landowners. According to ODEQ inspector Robert Burkhart, before 1972, most pollutants were the result of industry wastewater, but today the bulk of pollutants in Oregon waterways come from unpermitted and unmonitored sources like agricultural runoff, which can carry with it pesticides, herbicides, animal waste, fertilizers and even banned pesticides like DDT that bind to sediment and can fall off with erosion when bank-side (riparian) vegetation is removed.
In 1993, the Oregon State Legislature passed the Agricultural Water Quality Management Act, requiring the Oregon Department of Agriculture (ODA) establish a plan to prevent and control pollution from agricultural lands and achieve water quality standards. The departments plan aimed to educate farmers about the water quality program and standards and to control pollution, but that plan has fallen short.
According to Allison Hensey, Director of Sustainable Food and Farms at Oregon Environmental Council, “For the first 20 years of the program it was just a complaint driven system; if a complaint came in, they would go check it out, but there was no actual affirmative look to see if people were complying with the rules of the law.”
But now, Hensey says, the ODA is working on a new strategy to provide more oversight. Her organization along with nine other stakeholders, including the Oregon Association of Clean Water Agencies, Oregon Wild, League of Woman Voters and Tualatin Riverkeepers are attempting to work with the ODA to address some areas of the program that they say need improving, such as amount of time it could take to assess all the state’s private farmlands for water quality compliance. “I hope they will dedicate more resources to assessing more areas more quickly, under their current schedule,” says Hensey.
Despite being two decades into its water quality program, ODA water quality program manager John Byers said the ODA doesn’t know the number of sites housing agricultural activities affecting water quality in its jurisdiction. What is known is that most of them have never been checked to see whether or not they’re in compliance with state water quality standards. If preliminary plans discussed by the ODA to proactively assess all of these sites comes to fruition, advocacy groups say it could take hundreds of years to assess all of them. In the meantime, riparian conditions and runoff from most farmlands will go unchecked. Riparian conditions on agricultural land also have an impact on the health of waterways – without vegetation, water temperatures rise and erosion occurs, allowing contaminated sediment to fall into rivers and streams.
Earlier this month, the nine advocacy groups sent a letter to ODA directors and managers asking that they schedule a meeting with the letter’s represented organizations and municipality stakeholders to discuss their new proactive approach to water quality oversight.
The advocacy groups say ODA needs to ensure farmers know what’s expected – a recent report by one of the department’s own advisory committees states there is a lack of awareness among farmers and landowners about the water quality program and its rules.
They also recommended developing standardized, science-based criteria for assessments. “We’ve heard from ODA staff that whether a landowner is in compliance is a matter of professional judgment, and more specific compliance criteria do not exist,” the letter states.
Hensey says it’s important to remember that we all have to eat and that we value farmers in the Oregon economy. “We want to find ways to reduce runoff pollution in agricultural areas that work for farmers to still be profitable,” she says.
ODA water quality program manager John Byers was unable to give an estimation of how long it will take his department to assess compliance among private agricultural landowners. He says the numbers discussed in March, leading to fears it would take hundreds of years for a full assessment, were preliminary and taken out of context. “The numbers that were discussed originally, there was nothing scientific about it, it was just numbers,” he says. “We have 3,100 (subwatershed) sites. It’s our intention to be able to prioritize those, eliminating certain elements that wouldn’t be part of our jurisdictional properties,” he says.
So how long will it take? “I really can’t tell you,” says Byers. He says he’s currently working prioritization. A rate of assessing six to 12 sites every two years was also thrown out in preliminary discussions, but Byers says he doesn’t know what the actual rate will look like at this time.
In addition to speeding up the assessment process, the letter asks that ODA establish agreed upon goals and standards with the ODEQ, with whom it’s been in discussions with for some time.
According to Byers, the ODA is engaged in continual ongoing discussions with ODEQ about both reduction of pollutants and riparian vegetation. “We work together, which we are very proud to say. It’s not so true in other states, but in this state we work very well with ODEQ,” he says. When asked if any agreed upon goals had been set, he says, “It’s an ongoing discussion.”
But even if every agricultural site in the state were in compliance with current regulations, it wouldn’t be enough to rehabilitate the state’s waterways. “As we often see with other environmental laws, implementing our laws effectively is often a problem. Both because we don’t have the resources to do it well and sometimes there’s not the political will to do it well. In terms of actual water quality rules for agricultural areas, I think its generally acknowledged that just enforcing those alone won’t enable us to meet water quality standards, and that we are going to have to invest in a lot of voluntary conservation at a higher level to see the improvements we need to meet water quality standards,” says Hensey.