Water worries: Ranchers, county official fears state water quality plan will harm industry

Apr. 21—Curtis Martin is worried about water. He's a cattle rancher and so water, and the myriad of issues related to that vital substance, never stray too far from his thoughts.

But right now he's pondering not just the usual matters — will there be enough rain this spring to green his pastures and grazing ground, enough snowmelt to keep streams and springs flowing and to slake his herd's thirst during the hot summer.

Martin, who lives near North Powder, is also concerned about an effort, led by the Oregon Department of Environmental Quality (DEQ), to reduce the concentration of certain bacteria in the Powder and Burnt Rivers and their tributaries, both seasonal and year-round streams. These are fecal coliform and E. Coli bacteria, and they can make people and animals sick.

In particular Martin fears that the DEQ is laying too much blame for these bacteria on cattle — and specifically their feces — and on farming.

That is the agency's conclusion, according to records related to what's known as the TMDL process — Total Maximum Daily Load.

Although the DEQ oversees the process, its impetus is a federal law — the Clean Water Act of 1972.

Under that law, streams that are tested and that exceed federal standards for any of several contaminants — harmful bacteria, temperature, dissolved oxygen and sediment, among others — are added to each state's list of deficient streams.

In some river basins with such streams, DEQ prepares a TMDL, which lists the contaminants, their likely sources, and how much the pollutants must be reduced to comply with federal limits and, ultimately, remove streams from the list.

The document, which is paired with a water quality management plan, also outlines potential tactics for reducing pollution.

Those could include measures that for ranchers are either expensive or difficult to comply with, or both, Martin said, such as building fences to exclude cattle from streams, or changing their grazing rotations.

Sections of more than a dozen streams in the Powder River Basin exceed the federal standard for bacteria, according to DEQ.

These include the Powder and Burnt Rivers, the North Powder River, Eagle Creek, Dixie Creek, Pine Creek (in eastern Baker County), as well as Unity, Thief Valley, Phillips and Brownlee reservoirs.

The Powder basin encompasses most of Baker County, as well as small parts of Union, Wallowa, Grant and Malheur counties.

The DEQ is working on a TMDL, specific to bacteria, for the basin.

Concerns about the process

Martin, who is part of the 10-member TMDL advisory committee, has multiple concerns about the process. Chief among them is the DEQ's contention that livestock and farms are the predominant sources of bacteria in the basin.

According to DEQ, the agency's "source assessment for the Powder Basin TMDL found that the primary pathways for bacteria to enter waterways are through erosion and runoff from pastures, direct deposition of livestock manure, and transport and delivery of sediment and organic matter containing bacteria."

Although the DEQ doesn't pinpoint specific properties as sources, the agency does deem ranching and farming as responsible for about 90% of the "allowable bacteria load overall in the basin," according to Laura Gleim, public affairs specialist for DEQ's Eastern Region.

Some sections of stream would require reductions in bacterial load of 40% to 95% to meet water quality standards, according to the draft TMDL for the Powder basin.

The highest reduction, 95%, would be for the North Powder River from Miller Road to its confluence with the Powder River near North Powder. Reductions of 83% are proposed for the Powder River near Baker City, the North Powder River from the national forest boundary to Miller Lane, and the Burnt River from Unity Reservoir to Clarks Creek Road; and 75% for the Powder River from Thief Valley Reservoir to Richland.

Three reaches do not require any bacterial load reduction to meet federal standards — Pine Creek upstream of Oxbow; Powder River upstream from Phillips Reservoir; and the Burnt River at Unity Reservoir.

Both Martin and Doni Bruland, Baker County's natural resources director, said they believe the DEQ is placing too much blame on livestock and farms for the bacterial load.

Although the agency notes that wildlife and septic systems are other potential sources, DEQ concludes that septic systems are "likely an insignificant source of bacteria" and that wildlife — which in common with livestock are indiscriminate in where they defecate — "may make minor seasonal contributions, but are not a significant source of bacteria loading to surface waters."

Bruland and Martin contend that DEQ can't reach that conclusion because the agency has not done DNA analyses to determine whether sources of bacteria in water samples are domestic cattle or wild animals such as elk, deer and waterfowl.

"All of it has an impact," Bruland said. "They're painting us with a broad brush stroke. They're laying it at the door of our livestock and crop producers."

Bruland contends that DEQ should do more water sampling, including the DNA analysis, before finalizing the TMDL.

Most of the water samples on which the TMDL is based were collected between 2007-13, according to DEQ.

There are two sewage treatment plants in the basin, one at North Powder and one at Huntington, but those have existing permits that regulate pollutants in the water they release, so they're not included in the TMDL.

The same is true for water that runs off state highways, as the Oregon Department of Transportation has a permit dealing with pollutants, including harmful bacteria, in that runoff.

In addition to their complaint about the DEQ blaming livestock and farming for the vast majority of the bacterial load in the Powder Basin, Bruland and Martin also object to the agency using a relatively strict standard for determining whether bacteria concentrations exceed federal limits. That standard is based on human contact with the water while swimming, fishing or other types of recreation. This standard is more stringent — it requires a greater reduction of bacteria — than if the standard was the potential effects of bacteria on livestock and wildlife.

What changes will have to be made?

If livestock and farming are branded as the main problem for the Powder basin's bacterial load in the final TMDL, both Bruland and Martin fear that those activities — which are key segments of Baker County's economy — will bear the brunt of the solution as well.

The financial ramifications, Bruland said, could be "devastating."

According to information from Gleim, the DEQ spokesperson, the final TMDL, which the agency hopes to finish in September 2023, along with its associated water quality management plan, "will require those that contribute bacteria to the basin's waterways to apply controls to reduce those contributions. These practices are straightforward and include manure and pasture management, irrigation improvements, and streamside management to prevent erosion and runoff from fields. Action will not be needed everywhere in the basin, and significance of action will vary depending on specific conditions and practices already in use."

The lack of detail is troubling, both Bruland and Martin said.

At this point, ranchers and farmers can't know whether they'll be required to change their practices due to the TMDL, and if so, how much that might cost, and whether financial aid will be available.

"It's a little bit scary at this point, the unknowns," Bruland said.

A draft fiscal impact statement from DEQ states: "Although the proposed rule does not place specific requirements on small businesses in aggregate (the document defines small businesses as those with 50 or fewer employees), the proposed rule identifies management strategies and practices for the agricultural and forestry sectors that are necessary to reduce pollutant loads. These activities may require changes in certain management practices or improvements in land conditions that could result in capital costs for small livestock operators."

The statement also notes that grants and low-interest loans are available to help with work designed to reduce bacterial loads.

According to federal statistics, there are about 700 ranch and farm operations in Baker County that could be affected by the reductions in bacterial loads required through the TMDL process.

Bruland said direct costs to ranchers and farmers isn't the only potentially harmful effect of the process, however.

The TMDL applies not only to private property, but also to public land. About half of Baker County's 2 million acres are managed by either the U.S. Forest Service or Bureau of Land Management. Those agencies oversee grazing allotments where many of Baker County's cattle graze during the spring, summer or fall.

Bruland said she fears that the federal agencies might be required to reduce cattle numbers on public allotments to comply with TMDL requirements. That would force ranchers to either find alternative grazing land, or cull their herds. Because private grazing land is considerably more expensive to lease than public land, either option could prove expensive, Bruland said, or even potentially force some ranchers out of business.

Martin said some possible requirements under the TMDL, including building fences to keep cattle away from streams, could be prohibitively expensive not only for ranchers but for the Forest Service and BLM.

The DEQ's draft fiscal impact statement states that stream fencing would cost $12,000 to $15,000 per mile "for an unknown number of miles," and that "approximately half of implementation costs would likely be borne by livestock grazing allotment permittees who enter into cooperative agreements."

Both Bruland and Martin said Baker County ranchers and farmers have tried to protect water quality over the years, by installing water pipes and troughs so cattle don't have to walk (and defecate) in streams to drink, building fences along streams to keep cattle away, and replacing flood irrigation, which can cause bacteria-laden water to enter streams, with more efficient sprinklers, which reduce runoff.

Each of those techniques is listed in the DEQ's draft water quality management plan for the Powder basin as a way to reduce bacterial loading.

"We all want clean water," Martin said. "I'm not arguing that bacterial loading isn't above EPA standards at certain places and times."

Martin and Bruland both said that although they're quite concerned about the potential effects of the TMDL, they have been encouraged by DEQ officials' willingness to work with affected landowners.

"DEQ seems to want to cooperate really well," Bruland said.

How quickly might the plan affect ranchers and farmers?

There are somewhat comparable situations in other river basins for which DEQ approved TMDLs in the past.

The Malheur Basin TMDL from 2010, for instance, includes similar issues to the Powder Basin, including livestock grazing contributing to bacterial loads that exceed federal standards. The Malheur TMDL also deals with two other pollutants — excessive water temperature and chlorophyll, the latter an indication of high levels of algae resulting from concentrations of phosphorus, an ingredient in fertilizer used on farms.

Martin said he's not aware that the Malheur Basin TMDL has significantly hampered the agriculture industry in Malheur County, which, like Baker County, depends heavily on cattle ranching.

But even though the Powder Basin TMDL might not cause immediate harm, Martin said he worries about what might happen in 10 years, or 20.

"It's a creeping deal of further regulation and further monetary demands," he said. "My fear is this is going to be another layer of regulation."

During a November 2022 meeting of the Powder basin TMDL advisory committee, in response to a question from Bruland, Alex Liverman, a watershed management program analyst for DEQ, said the agency judges the progress on achieving TMDLs based on annual and five-year reports from organizations that are employing strategies to reduce pollution.

Liverman said that it can take years or decades to achieve TMDL goals.

Martin and Bruland also point out that the current TMDL process for the Powder basin involves only one pollutant — bacteria.

According to DEQ, streams in the Powder basin also exceed federal limits for dissolved oxygen, pH level and chlorophyll/phosphorus. Separate TMDLs for those pollutants are "scheduled for development," according to DEQ.