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Fix 1010 problems
In the February 18, 2000, issue of Capital Press an executive from one of Oregon’s
agricultural groups wrote a guest comment discussing the relationship between the
"Camp Creek" case and the 1010 planning process. The advice: don’t get
excited about Camp Creek and stay the course with 1010. I disagree. If we don’t get
excited we might as well give up, because we aren’t going to get many victories that
are so significant.
Simply put, Camp Creek is a landmark legal judgment stating the federal
government cannot directly regulate nonpoint source pollution under the Clean Water Act.
In rendering its decision the Ninth Circuit declared that the Clean Water Act
"provides no direct mechanism to control nonpoint source pollution but rather uses
the ‘threat and promise’ of federal grants to the states to accomplish this
task."
The importance of this case has been noticed across the nation. In a
recent article Cheryl Stubbendieck, vice-president of public relations for the Nebraska
Farm Bureau, wrote: "The courts have ruled that federal agencies can’t expand
their jurisdiction beyond what is allowed under the Clean Water Act, such as trying to
regulate nonpoint sources, or assign limits to those resources, as EPA has sought to do
with its [Total Maximum Daily Load] regulations."
If, as predicted by the earlier guest comment, further litigation will
be required to cement this legal principle, then so be it. But we cannot afford to allow
the necessity of future lawsuits to deter us from addressing the deficiencies of SB 1010
so that the law provides maximum water quality improvement while minimizing the regulatory
burden placed on the backs of producers.
So, let’s turn back the clock to 1993 and look at the origins of
Senate Bill 1010 from the perspective of Water for Life, Inc. Our non-profit group
(representing the interests of agricultural water users) was deeply involved in this
issue.
At the time there was a general consensus that the feds, through the
Environmental Protection Agency, were going to use the Clean Water Act to force farmers,
ranchers and other producers to adopt an agricultural practices act for nonpoint.
Traditionally, agricultural practices proposals have boiled down to burdensome,
impractical rules that mandate how producers operate on their land. These types of
restrictions on agricultural practices do not consider whether there is scientific proof
that the prohibited practices are, in fact, causing pollution.
In opposition to the general consensus, Water for Life, Oregon
Cattlemen’s Association, and a few other producer representatives took the very vocal
position that a truly voluntary planning process would not only be more acceptable to the
agriculture community, but it would work! We argued against the conventional belief that
the Clean Water Act would be used as a hammer against the agriculture community. Moreover,
we made the case that, as the best stewards of the land, we have a vested interest in
preserving the quality of our lands, waters and wildlife for future generations.
But the pro-regulation advocates replied that, if we did not adopt a
nonpoint regulatory system, then the EPA, through Oregon’s Department of
Environmental Quality, would move in and do it themselves. The debate was reminiscent of
our disappointing experience with the Oregon Plan and the National Marine Fisheries
Service’s threat to list Oregon’s salmon as endangered – they have a gun to
our head and there’s no other alternative.
Ultimately SB 1010 became law despite its shortcomings. Six years later
the Ninth Circuit court issued the Camp Creek decision and proclaimed that the Clean Water
Act does not allow the feds to impose fines and penalties for nonpoint source pollution.
The Supreme Court let the decision stand.
Camp Creek is a giant step back from the brink that anti-farming and
anti-ranching activists have been trying to push us over for years. Now is not the time to
cower, it’s the time to push forward.
That being said, Water for Life is not advocating the abandonment of SB
1010. Instead we are relaying a loud and unambiguous message from our members: the 1010
water quality planning process is broken, so fix it.
We all want clean streams. We all want to leave the land better than we
found it. We accept these truths voluntarily and don’t appreciate threats of fines
and penalties. If the agriculture community is willing to adopt truly voluntary water
quality management plans, and if the feds are unable use the Clean Water Act to create a
practices act for nonpoint, then why can’t we fix 1010?
Sincerely,
Roger Nicholson
Co-Founder & Director: Water for Life, Inc.
Water
for Life Foundation
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