Tribal Council, DEQ staff discuss water quality

Tribal Council held a 90-minute government-to-government meeting with Oregon Department of Environmental Quality staff, including Director Richard Whitman, on Monday, Nov. 27, and most of the conversation centered on water quality in the state.

Whitman, who was accompanied by Water Quality Program Manager Jennifer Wigal and Water Quality Manager Christine Svetkovich, started the meeting with some bad news – Oregon is one of the worst states in the nation in keeping its water quality permits current.

“We have the second worst backlog of work on our federal water quality permits,” Whitman said. “For me, as director of the agency and I think for the agency itself, that is not an acceptable situation.”

Whitman cited federal law that allows permit holders to extend their five-year permits indefinitely if they apply for renewal before the permit expires, and thereby never having to comply with new water quality standards established by the Department of Environmental Quality after the permits are initially issued.

“Over time, it can have a real impact in terms of the degree to which we are protecting human health and the environment,” Whitman said. “That is why it is such a significant concern for us and should be a significant concern for the Tribes as well.”

He said there is no incentive, such as financial penalties, for water quality permit holders to get their permits updated and that there is always resistance from the regulated community to more stringent treatment regulations. “They have a disincentive for getting their permits updated,” he said.

Whitman also cited outdated data collection practices, flat or declining resources allocated to the department and a more complicated legal environment as the result of lawsuits as other reasons for an increase in the water quality permit backlog.

Tribal Council Chairwoman Cheryle A. Kennedy opened the meeting saying that the Tribe is willing to assist in any way it can to help the state protect the environment, particularly fish habitat.

“Knowing that there are difficult times ahead of us, or it seems like, we certainly want you to know that we are here to help in any way that we can,” Kennedy said. “As Tribes, we are able to lobby our Congress people and to inform them in great detail of what our wishes and needs might be. That is something that we are willing to do and we just ask that you put forward some issues that we would be able to address more readily.”

Kennedy was joined by Vice Chair Chris Mercier, Secretary Jon A. George, Michael Langley, Brenda Tuomi, Kathleen George, Jack Giffen Jr. and Denise Harvey in the meeting. Kathleen George was appointed to serve on the Environmental Quality Commission, which oversees the Department of Environmental Quality, earlier this year by Gov. Kate Brown.

Tribal staff in attendance included Natural Resources Department Manager Michael Wilson, Senior Staff Attorney Jennifer Biesack, Tribal Lands Project Administrator Brandy Humphreys, Environmental Resources Specialist Meagan Flier, Ceded Lands Program Manager Michael Karnosh and Planning Department Manager Rick George.

Whitman said his department is working to improve its status in the country regarding issuing and renewing water quality permits. Staff has been reorganized to work only on issuing and updating permits and a Water Quality administrator will be added to increase accountability within the Water Quality Program.

“Those changes will put us on a pathway toward updating many of these older permits, but by themselves they will not be sufficient to get us to where we need to go,” Whitman said.

Whitman said the Tribe could help the department during the 2019 session of the Oregon Legislature by lobbying for increased funding, either through increased fees or more general fund money, so that staff members can protect Oregon’s water. He added that federal support probably will decrease in the near future under the budgets proposed by the House of Representatives, Senate and Trump administration.

“We are probably going to have to do it by getting fees increases approved by the Oregon Legislature,” he said, adding that 60 percent of the Water Quality Program’s funding derives from fees.

Wigal said enforcing water quality standards is getting more complex because of lawsuits and court decisions that are creating a “significant workload” for the department.

Those Oregon court decisions accompanied by short time frames during which to accomplish court-mandated goals affect such things as the temperature standards established to protect salmon to the amount of mercury allowed in Willamette Basin fish.

“We’re in a ‘do’ loop,” Whitman said. “Litigation that is creating a lot of uncertainly about what requirements are that make it very difficult for us to get permits updated, which means the permits are not being brought into compliance with the standards that we all know they need to be complying with.”

Kennedy said her concerns regarding TMDLs – total maximum daily loads – is that when they are established nothing appears to change.

“I still have my reservations about that earlier fish consumption rate because we didn’t have good data,” Kennedy said. “We were just drawing at straws, trying to put our hands on what could be the potential cost to Natives who eat so much more fish. … Fish is brain food, so if you are eating more fish it will probably affect your brain to a greater degree than other groups.”

The Tribe worked with DEQ to increase the statewide fish consumption rate to 175 grams per day in 2011. In September, the Tribe sent a letter to Whitman expressing concern that the fish consumption rate was not being fully implemented.

“Water resources are of paramount importance to the Tribe,” Karnosh said. “It is No. 1 on the Tribe’s priority list. A lot of the irreplaceable cultural resources for the Tribe, from runs of salmon to Pacific lamprey to aquatic plant species, they all depend really highly on water quality.”

Wilson, who has spent time in the Willamette River harvesting Pacific lamprey at the falls at Oregon City as part of the Tribe’s restored fishing rights, said he is concerned about the water quality and the frequent sewage releases that occur upriver near Salem. He added that standards need to be created regarding acceptable levels of pharmaceuticals found in Oregon’s waterways.

Flier said she would encourage the state Department of Environmental Quality to be more preventive than reactionary, as well as update water quality standards as river systems change in reaction to global warming.

“We are concerned about a lot of the same things that you are,” Wigal said, adding that the department works with other organizations, such as state universities and Tribal nations, to keep up to date on technical aspects of monitoring water quality.

Kathleen George said water quality in Oregon is a big question with myriad answers and that the Grand Ronde Tribe wants to hold the state accountable while also being helpful.

“A lot of those answers are not implemented to the degree that the Tribe would want to see or to the degree that DEQ would want to see,” George said. “I am deeply concerned about Oregon and about our weak ability to protect our waters.”

George suggested that the department become a stronger, more robust regulatory agency, responsibility for testing be increased on permittees and that more work be done with Tribal partners to increase understanding of the importance of DEQ’s mission.

Kennedy agreed, saying that the burden should be placed on polluters to clean up their act.

Giffen said the state needs to end its practice of renewing water quality permits indefinitely, which prevents permit holders from ever following current standards. “That’s the key to the preventive process,” he said.

Whitman also briefly discussed the Portland Harbor, which was designated as a Superfund site 17 years ago. He said after initial apprehension that the Trump-era Environmental Protection Agency might abandon a record of decision issued 10 months ago regarding cleaning up the area, it appears the federal agency is going to do the “right thing.”

However, Whitman also suggested keeping an eye on the EPA to ensure it follows the record of decision and gets responsible parties to clean up the polluted site. He said he is now hopeful the site will be cleaned up by 2035.

Whitman added that the Department of Environmental Quality continues to seek “active participation” from Oregon Tribes in performing its work to protect the state’s environment.

At the end of the meeting, Secretary Jon A. George gifted the three DEQ employees with dentalium necklaces.