MEMORANDUM OF AGREEMENT BETWEEN

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

AND

THE STATE OF OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY

REGARDING

THE IMPLEMENTATION OF

SECTION 303(d) OF THE FEDERAL CLEAN WATER ACT

Preamble

WHEREAS, this AGREEMENT is made and entered into by and between the U.S. Environmental Protection Agency, Region 10 (hereinafter referred to as EPA) and the State of Oregon Department of Environmental Quality (hereinafter referred to as DEQ).

WHEREAS, the parties agree that the terms of this agreement, including but not limited to any statements of policy and obligations contained herein, are not intended to be statements of national policy or requirements;

WHEREAS, it is the purpose of this agreement to provide a framework, schedule, and strategy to restore the quality of impaired waters within the State of Oregon to achieve Water Quality Standards, and to describe the methods and processes that the State of Oregon will use to develop and implement the requisite Total Maximum Daily Loads for waters listed on the 1998 303(d) list of Water Quality Limited Waterbodies;

WHEREAS, the Clean Water Act (CWA) 303(d), 33 U.S.C. 1313(d), and EPAs implementing regulations provide for: (1) identification of waters for which (A) applicable technology-based effluent limitations and other required controls are not stringent enough to implement Water Quality Standards applicable to such waters, or (B) controls on thermal discharges under Section 301 of the CWA are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife (collectively, the Section 303(d) list); (2) establishment of a priority ranking for such waters; and (3) establishment of total maximum daily loads (TMDLs) for those waters which are identified on the Section 303(d) list;

WHEREAS, TMDLs shall be established at levels necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality;

WHEREAS, it is acknowledged that other state agencies, most notably the Oregon Department of Agriculture (hereinafter referred to as ODA) and the Oregon Department of Forestry (hereinafter referred to as DOF) have responsibilities for regulating state and private agricultural lands and forestry operations respectively;

WHEREAS, DEQ has the responsibility for the designation of Water Quality Limited Segments and the establishment of TMDLs pursuant to Section 303(d) of the CWA, 33 U.S.C. 1313(d), within the State of Oregon;

WHEREAS, DEQ will develop and submit to EPA a schedule, in conjunction with the 1998 303(d) list, for development and submittal of TMDLs as appropriate (see Section III.B) for all waters listed on the 1998 303(d) list over a time period ending June 30, 2007;

WHEREAS, the Healthy Streams Partnership Agreement, the Coastal Salmon Restoration Initiative (CSRI), and the Steelhead Supplement together comprise the Oregon Plan;

WHEREAS, EPA and DEQ seek to implement a strategy for development and implementation of TMDLs in the State of Oregon consistent with the Clean Water Act and the Oregon Plan for Healthy Salmon and Streams (Attachment B);

WHEREAS, the State of Oregon has entered into the Healthy Streams Partnership agreement with various stakeholders to work together to improve the health and function of aquatic systems and to enhance beneficial uses of water in Oregon;

WHEREAS, the Healthy Streams Partnership agreement is based upon a willingness of the parties to work together to mobilize public and private funding and efforts to improve water quality in Oregon;

WHEREAS, the Oregon legislature has established by statute a Healthy Streams Partnership in ORS 541.405 to 541.413;

WHEREAS, EPA and DEQ experience limitations of resources available for the TMDL process, and DEQ desires to partner with EPA to implement a TMDL process that results in improvements to water quality and complies with applicable legal requirements;

WHEREAS, on November 1, 1997 DEQ issued guidance to assist in TMDL development and implementation;

THEREFORE, EPA AND DEQ MUTUALLY AGREE THAT:

I. Schedule for Development of TMDLs

A. DEQ will prioritize, schedule, scope, develop and submit Total Maximum Daily Loads (TMDLs) for water quality limited segments on the states 1998 303(d) list in accordance with the "Schedule For TMDL Submittal" (Attachment A) by June 30, 2007. Submittal within one year of the date specified on the Schedule will be deemed timely.

B. In fulfilling its commitments under this Agreement, DEQ is under no obligation to establish TMDLs for any water quality limited segments that are determined not to need TMDLs consistent with Section 303(d) of the CWA and its implementing regulations, including 40 CFR 130.7(b)(1), as amended, or are removed from Oregons 303(d) list consistent with the provisions of the Clean Water Act and its implementing regulations.

C. DEQ and EPA understand that future CWA Section 303(d) lists for Oregon State may include additional waters that may warrant TMDL development prior to waters listed on the 1998 Section 303(d) list. The parties agree that DEQ may substitute one or more such future listed waters for one or more waters on the 1998 303(d) list. However, DEQ intends to develop TMDLs in a manner generally consistent with time frames set out in Attachment A.

Any decisions to change the Schedule For TMDL Submittal will be made in the context of DEQs biennial preparation of its Section 303(d) list. Because DEQ generally intends to develop TMDLs on a sub-basin basis, any changes to the schedule would likely address entire sub-basins, rather than addressing specific waterbodies or water quality limited segments. If waterbodies on lists subsequent to the 1998 list are proposed to be substituted, DEQ shall submit a letter to EPA at the time of submission of its 303(d) list notifying EPA of the waters so substituted. No substitution shall result in numerically fewer waters being addressed than appear on the 1998 list at the expiration of the period contained in the schedule appended at Attachment A.

II. TMDL Prioritization

TMDLs shall be completed according to the priority established in the schedule at attachment A. Nothing in the schedule, though, shall preclude another TMDL being completed out of sequence in the event another agency of group or person has completed the work required. Nothing in this schedule shall prevent DEQ from receiving money pursuant to ORS 468.073 to be used for the purposes of completing TMDLs, provided that TMDLs developed through the use of such funding shall not detract from DEQs development of TMDLs in accordance with the schedule appended at Attachment A.

For the 1997-1999 biennium (July 1, 1997 - June 30, 1999), the priority basins are:

Umpqua

Rogue

Tillamook Sub-Basin

III. DEQs Approach to Water Quality Management

DEQ will submit TMDLs developed in accord with the schedule appended at Attachment A, and will do so on a geographic scale appropriate to the pollutants being considered. DEQ will strive, where appropriate, to address TMDLs in accord with US Geological Surveys fifth field hydrologic units.

DEQs Role

DEQ estimates that 75 percent (68 subbasins) of the 91 subbasins in Oregon are primarily affected by forestry and/or agricultural nonpoint source activity. Of these 68 subbasins, 50 percent are wholly federally owned and/or managed lands. The other 50 percent are either privately owned lands or mixed federal, state and private ownership.

The remaining 25 percent of the 91 subbasins (23) are affected by both point and nonpoint sources, including municipal sewage treatment plants, industrial discharges, urban stormwater runoff, construction activities, agriculture and forestry.

DEQ agrees to the following:

A. Listing and Prioritization

1. Based on existing and readily available data and information, as defined at 40 C.F.R. 130.7(b)(5), DEQ will list on the 303(d) list those stream segments, lakes, and estuaries that do not meet applicable water quality standards, or are not expected to meet applicable water quality standards prior to the required date for the next 303(d) list, even after the application of technology-based effluent limitations or other required controls, as specified in 40 C.F.R. 130.7(b)(1).

2. In consultation with affected agencies and interests, DEQ will develop criteria for ranks, and prioritize water quality limited waterbodies for TMDL development. Prioritization shall take into account the severity of the pollution and the uses to be made of the waters.

3. See Paragraph XI for circumstances under which a water quality limited segment will be re-listed where source controls specified in an implementation plan have not been substantially put in place.

B. Delisting

DEQ intends to remove a previously listed waterbody from the 303(d) list if:

1. The waterbody is meeting all applicable water quality standards (including numeric and narrative criteria and designated uses) or is expected to meet these standards prior to the required date for the next 303(d) list (i.e., within the next two years) as a result of other pollution control requirements (e.g., best management practices) required by local, State, or Federal authority; or

2. Upon re-examination, the original basis for listing is determined to be inaccurate; or

3. A TMDL for all the pollutants listed has been approved by EPA for that waterbody. However, if a waterbody is listed for more than one pollutant and a TMDL for one of the pollutants has been approved, that waterbody may be removed from the list for that pollutant, but not for the remaining pollutants.

C. TMDL Development

DEQ will develop TMDLs for waterbodies listed on the 1998 303(d) list in the order in which they appear in the schedule attached at Attachment A, subject to I. B. and C. above.

Three distinct types of TMDL will be undertaken by DEQ:

1. Point Source TMDLs. These comprise TMDLs in which the contributors are solely point sources.

2. Nonpoint Source TMDLs. These comprise TMDLs in which the sources are solely non-point, including agriculture, forestry, or urban runoff.

3. Combination TMDLs. These comprise TMDLs with both point source and nonpoint source components.

Elements of All TMDLs

For those waters listed on the 1998 303(d) list, DEQ will submit to EPA for approval TMDLs which will contain the following elements:

1. A description of the geographic area to which the TMDL applies;

2. Specification of the applicable water quality standards;

3 An assessment of the problem, including the extent of deviation of ambient conditions from water quality standards;

4. Development of a loading capacity including those based on surrogate measures and, including flow assumptions used in developing the TMDL;

5. Identification of point sources and nonpoint sources;

6. Development of Waste Load Allocations for point sources and Load Allocations for nonpoint sources;

7. Development of a margin of safety;

8. Evaluation of seasonal variations.

Point Source TMDLs

For those waters listed on the 1998 303(d) list that are impaired solely by point sources, DEQ will, in most cases, take the lead in addressing all of the TMDL elements identified above.

Nonpoint Source TMDLs

For nonpoint source TMDLs, DEQ contemplates that the following approach will commonly be used: DEQ will establish the appropriate geographic areas (basin, subbasin, watershed or segment) and pollutants to be addressed. A local advisory group will be established to assist DEQ in obtaining the maximum amount of local input to the TMDL development process. Meetings of the advisory group will be public.

In areas where water quality problems are related primarily to nonpoint sources, DEQ will work with federal and state agencies, watershed councils, communities, counties, SWCD's, citizens groups, and others to identify data needs, collect, manage and analyze data and provide results to the public.

DEQ, in conjunction with Designated Management Agencies, the advisory group and other members of the public, will conduct an assessment of the area characterizing the water quality problem, identifying potential causes and sources (nonpoint and natural conditions) and estimating relative contributions to the problem.

After the above work has been accomplished, DEQ anticipates taking the lead in certain key technical decisions, especially in determining the loading capacity and the margin of safety of the waterbody(ies) in question. Recommendations on other TMDL elements such as load allocations to particular sources may be made in the first instance by advisory groups, but DEQ will review these recommendations and ultimately make these determinations as well.

Combination TMDLs

Combination TMDLs comprise that group of listed waterbodies to which the contributing sources are a combination of point and nonpoint. In this instance, the TMDL will likely be a blend of the point source and nonpoint source approaches described above. DEQ will ensure that the loading capacity is determined and that waste load allocations are assigned to point sources and load allocations are assigned to nonpoint sources (agriculture, forestry, urban and federal). For TMDLs in which waste load allocations to point sources are based on the assumption that loads from nonpoint sources will be reduced, DEQ will demonstrate reasonable assurance that the nonpoint load allocations will be achieved.

Third Party Participation in TMDL Development

Consistent with the Oregon Plan, DEQ will encourage other parties to participate in the development of TMDLs. DEQ will independently review the data, the interpretation of the applicable water quality standards, and recommendations for loading capacity, margin of safety, waste load allocations and load allocations. DEQ will ensure that the materials submitted to EPA constitute a proper TMDL before submission to EPA, and that the submitted materials supporting the TMDL adequately document and justify the bases for the elements of the TMDL. DEQ will ensure that all TMDLs developed through this process and submitted to EPA meet the requirements of the Clean Water Act, its implementing regulations, and other applicable laws and regulations.

Within the constraints of its resources, DEQ undertakes to work with other parties who wish to develop TMDLs at as early a stage as possible. To this end, DEQ will develop and disseminate guidance documents on such issues as data collection and the required elements of a TMDL.

IV. TMDL Implementation

Implementation of TMDLs is critical to the attainment of water quality standards. Additionally, the support of Designated Management Agencies (DMAs) in implementing TMDLs is essential. In instances where DEQ has no direct authority for implementation, it will work with Designated Management Agencies on implementation to ensure attainment of water quality standards. Where DEQ has indirect authority, DEQ will use that authority to ensure attainment of water quality standards. DEQ intends to submit TMDL implementation plans to EPA concurrently with submission of TMDLs. This will impact the TMDL schedule, as a number of TMDLs are already well advanced in development.

DEQ shall, if applicable, apply to the Oregon Water Resources Department for an instream water right for pollution abatement to protect flows associated with TMDLs. Such applications shall be coordinated with the Oregon Department of Fish and Wildlife and the Oregon Parks and Recreation Department.

Both TMDLs and their associated implementation plans shall be submitted by DEQ to EPA as updates to the states Water Quality Management Plan pursuant to 40 CFR 130.6(e). Such submissions will be a continuing update of the Continuing Planning Process.

DEQ expects that TMDLs will be implemented as described below.

A. TMDL Implementation Plans for All Sources

DEQ will assemble the various implementation plans and forward them to EPA. In so doing, DEQ shall review all plans for any waterbody to ensure that the following elements are clearly identifiable:

1. Proposed management measures tied to attainment of the TMDL. This will include a list of sources by category or sub-category of activity;

2. Timeline for implementation, including a schedule for revising permits, and a schedule for completion of measurable milestones (including appropriate incremental, measurable water quality targets and milestones for implementing control actions);

3. Timeline for attainment of water quality standards, including an explanation of how implementation is expected to result in the attainment of water quality standards;

4. Identification of responsible participants demonstrating who is responsible for implementing the various measures;

5. Reasonable assurance of implementation;

6. Monitoring and evaluation, including identification of parties responsible for monitoring, and a plan and schedule for revision of the TMDL and/or implementation plan;

7. Public involvement;

8. Maintenance of effort over time;

9. Discussion of cost and funding;

10. Citation to legal authorities under which the implementation will be conducted.

B. Point Source TMDL Implementation

(1) DEQ will implement point source TMDLs through the issuance or reissuance of NPDES permits.

(2) DEQ will apply the States antidegradation policy where applicable to applications for NPDES permits for new or expanded loads if a TMDL contains an allocation for future growth. If there is no allocation for future growth, no permits will be issued for new or expanded loads, unless offset by reductions.

C. Nonpoint Source TMDL Implementation

With respect to Section 303(d) of the CWA, the legislature has given DEQ specific statutory authority to develop load allocations for nonpoint sources. ORS 468B.110. To the extent allowed under the CWA, however, the rules adopted by the Board of Forestry under the Forest Practices Act will be used to implement load allocations for nonpoint sources pollution from forest operations on state and private timber lands. ORS 468B.110; 527.765; 527.770. Similarly, Agricultural Water Quality Management Area Plans developed by the Oregon Department of Agriculture or other statutorily available authority will be used to implement load allocations for nonpoint sources of pollution arising from farming practices on lands zoned for farm or other agricultural uses. ORS 561.191; 568.900 to 568.933.

Nonpoint source implementation will be undertaken as follows:

Forestry Sources

Pollution control measures necessary to address forestry sources shall be implemented through the Forest Practices Program pursuant to ORS 527.765 as well as through voluntary landowner actions consistent with the Oregon Plan. The Forest Practices Program is implemented through best management practices adopted as administrative rules, operator/landowner education and assistance, and rule enforcement through civil orders, civil penalties and in extreme cases, criminal prosecution. The Oregon Department of Forestry is the DMA for private and non-federal public forestlands. The forestry component of TMDLs will be implemented as follows:

1. Where DEQ and ODF agree that the current forest practice rule BMPs are adequate to achieve the forestry load allocation in an applicable TMDL, these BMPs will be used to implement the TMDL.

2. Where water quality impairment on a particular listed waterbody is due to past forestry practices that are beyond the legal authority of ODF to regulate, but DEQ and ODF agree in the preparation of the relevant implementation plan that current BMPs under the forest practices rules are adequately regulating or will adequately regulate forest practices to meet TMDL load allocations and are not further degrading or will not further degrade water quality, then the forest practices rules will be implemented.

3. In preparing the applicable implementation plan, where DEQ and ODF do not agree on whether current forest practice rule BMPs will achieve the forestry load allocation in an applicable TMDL, these BMPS will, nonetheless, be referenced in the TMDL implementation plan. However, ODF in consultation with DEQ will work diligently to design and implement a mutually agreeable monitoring program to gain information sufficient to determine whether or not current forest practice BMPs will achieve the forestry load allocation. This monitoring program during implementation shall be a component of an implementation plan. If such monitoring demonstrates that current forest practice BMPs will not achieve the forestry load allocation, then the Board of Forestry in consultation with the Environmental Quality Commission (EQC) will create watershed specific protection rules or make other rule or program changes necessary to implement the load allocations and assure attainment of water quality standards in accordance with ORS 527.765.

4. Where DEQ and ODF agree, in the preparation of the relevant implementation plan, that despite application of and compliance with current BMPs forest operations will result or are resulting in non-achievement of TMDL load allocations, the Board of Forestry in consultation with the EQC will create watershed specific protection rules. If watershed-specific protection rules are not applicable under the Forest Practices Act, then ODF will use any other existing authority to ensure achievement of the TMDL load allocations in accordance with ORS 527.765, subject to limitations on that authority.

Agricultural Sources

For load allocations for agricultural contributions to water quality impairment, the Oregon Department of Agriculture (ODA) is the DMA. ODA has responsibility under ORS 568.900-933 and ORS 561.191 for regulating farming practices for water quality improvement. In the case of listed waters in agricultural areas, ODA will prepare an Agricultural Water Quality Management Area Plan (AWQMAP).

Through the AWQMAP process it is ODAs intent to work proactively with landowners to provide information and technical assistance for implementation of measures protective of water quality. All AWQMAPs will be adopted as administrative rules, and will contain regulatory backstops. Any enforcement undertaken by ODA shall be pursued in accordance with OAR 603-90-060 through 120.

ODA will convene an advisory committee in developing AWQMAPs to assist in development, and to determine the boundary within which the plan will apply. ODA, in conjunction with the advisory committee, will gather relevant data and information from other committees or councils in the defined area.

ODA and DEQ have committed to working closely together during AWQMAP development. If an AWQMAP is prepared before a TMDL, the AWQMAP will be re-evaluated after the TMDL is prepared to ensure that the load allocation for agricultural sources is met.

Urban Nonpoint Sources

DEQ will work with cities, counties and special districts to develop or modify existing water quality management plans where listed waters are significantly affected by the discharge or runoff of pollutants in urban stormwater. These plans may include elements, among others, such as road maintenance policies, NPDES stormwater permits and local erosion, flood or water quality control ordinances.

Federal Lands

DEQ will work with federal agencies (BLM, USFS, USACOE) to develop and modify water quality management plans to address waters listed on federal lands.

D. Accountability and Reporting

DEQ shall provide reports as follows:

1. Periodic reports to the Legislative Oversight Committee established pursuant to Senate Bill 924; and

2. Reports to EPA Region X on TMDL development in conjunction with the Performance Partnership discussions including the following elements:

a. Number and identity of TMDLs completed since last report;

b. Number and identity of listed segments for which TMDLs completed since last report;

c. Number and identity of any waters removed from the 303(d) list and reasons for removal;

d. Number and identity of TMDLs submitted but not approved and dates of submission and disapproval or other action;

e. An analysis of progress made to date on the TMDL schedule and projections for the rest of the schedule.

V. Agreements with other Agencies

This memorandum of agreement is strictly between EPA and DEQ. It does not incorporate or approve any other inter-agency agreements made by EPA or DEQ that also pertain to the development of TMDLs and implementation plans in Oregon.

DEQ has entered into and may enter into memoranda of agreement, memoranda of understanding or other agreements with other state agencies or entities. Those agreements are intended to be consistent with this agreement. However, in the event that any other such agreement is inconsistent with the Clean Water Act, EPAs regulations, or this Memorandum of Agreement (MOA), DEQ will initiate discussions with its co-signatories of other agreements as necessary to resolve the inconsistency.

VI. Public Participation

A. DEQ will include specific interactions with the public designed to ensure adequate consultation and public involvement in TMDL decision making. DEQs TMDL submittals will include copies of materials showing that an adequate public process has been conducted. DEQ will ensure that adequate public participation has been undertaken by designated management agencies in conjunction with TMDL development.

B. DEQ will seek public input on TMDL prioritization in conjunction with the release of its 303(d) list each biennium.

C. TMDL Development: DEQ will ensure public participation which will at a minimum meet federal requirements for public involvement (40 CFR 25, part 25.4).

VII. Tribal Involvement

DEQ will coordinate with tribal governments as follows with respect to off-reservation waters:

A. DEQ will provide opportunities for tribal government involvement in its 303(d) listing process. The specific opportunities and methods of tribal involvement shall be described in DEQs 303(d) listing procedure and any agreements that may be entered into between DEQ and any specific tribal government.

B. DEQ will provide opportunities for appropriate tribal government involvement in development and implementation of TMDLs. The specific opportunities and methods of tribal involvement may be determined in agreements entered into between DEQ and any specific tribal government.

VIII. EPA Review of TMDLs

EPA will review -- and approve or disapprove -- the TMDLs submitted by DEQ in accordance with the CWA and EPAs implementing regulations and guidance. EPA does not approve or disapprove implementation plans.

Under current EPA guidance, for a TMDL in which wasteload allocations to point sources are based on the assumption that loads from nonpoint sources will be reduced, DEQ will demonstrate reasonable assurance that the nonpoint load allocations will be achieved. EPA will review the TMDLs submitted by DEQ where loads are allocated in such a manner to determine whether such reasonable assurance exists.

IX. Federal Agencies

EPA will pursue the development of appropriate mechanisms (e.g., memorandums of agreement, standards and guidelines in forest plans, etc.) to encourage federal agencies to participate in the development and implementation of TMDLs. Such agencies will include, but not be limited to, the US Forest Service, US Army Corps of Engineers, US Bureau of Reclamation, National Marine Fisheries Service, US Bureau of Land Management, National Park Service, Natural Resources Conservation Service and US Fish and Wildlife Service.

X. Role of EPA in Developing TMDLs for Interstate or Interjurisdictional Waters

A. Where one or more states or tribes are developing a TMDL for interstate or interjurisdictional waters and requests assistance from EPA, EPA will participate in the development process either as the lead or other appropriate role as agreed upon by the states, tribes and/or EPA.

B. In instances where EPA develops TMDLs for 303(d) listed waters within the states jurisdiction, responsibility for the implementation plans for the TMDLs will be determined through the Performance Partnership Agreement process.

XI. TMDL Tracking

DEQ will maintain information on water quality limited segments in a tracking system or database. The tracking system will contain information on (1) water quality limited segments for which TMDLs have been developed, and (2) water quality limited segments for which TMDLs have not been developed because other pollution controls have been deemed stringent enough to implement applicable water quality standards. The tracking system will be updated periodically and will be available to EPA and the public. Elements that will be tracked include:

Waters covered under the TMDL;

EPA Approval date;

Who are the responsible DMAs;

Key elements of the TMDL (e.g. what are the targets to be achieved, what are key progress dates);

Anticipated date of achieving water quality standards;

Any indicator of progress (i.e. what has been achieved to date) or a "hot key" to an appropriate web site regarding work being done on the TMDL put together by the DMA.

DEQ contact for the TMDL

DEQ intends to check periodically on the progress of implementation measures and attainment of water quality standards after TMDLs are developed. If, for any particular TMDL, DEQ determines that implementation is not proceeding because source controls specified in an implementation plan have not substantially been put in place, then DEQ will place the waterbody on the 303(d) list when the next list is submitted to EPA for approval. If implementation measures are in put in place as proposed, but water quality standards are not or will not be attained, or the load allocations or wasteload allocations for the TMDL are not or will not be attained, then DEQ will assess the situation and take appropriate action. Such action may include additional implementation measure, modifications to the TMDL, and/or placing the waterbody on the 303(d) list when the next list is submitted to EPA for approval.

XII. Evaluation of TMDL Development and Submittal

A. At meetings called to develop the DEQ/EPA Performance Partnership Agreement, EPA and DEQ will evaluate the pace of development and submittal of TMDLs for waters on the 1998 303(d) list. If the evaluation indicates that the pace of development and submittal of TMDLs is inadequate, EPA and DEQ will identify causative factors and appropriate remedies.

B. If EPA determines that DEQ has failed to submit TMDLs for waters identified on the 1998 list in substantial compliance with the schedule set forth in Attachment A, then EPA will take such steps as it deems appropriate and are authorized by law. EPA shall provide reasonable notice to DEQ of any such steps.

XIII. Limitations

EPA and DEQ recognize that the performance of this Agreement is subject to fiscal and procurement laws and regulations of the United States and the State of Oregon. The possibility exists that circumstances outside the reasonable control of DEQ and EPA could delay compliance with the timetables and requirements contained in this Agreement. Such situations include, but are not limited to, sufficient funds not being appropriated as requested, appropriated funds not being available for expenditure, or catastrophic environmental events requiring an immediate and/or time consuming response by EPA or DEQ. Should a delay occur due to such circumstances, any resulting failure by DEQ to meet the timetables and requirements of the Agreement shall not constitute a failure to comply with the terms of the Agreement. DEQ shall provide to EPA reasonable notice in the event that DEQ invokes this term of the Agreement.

Should this term be invoked, EPA may take such steps as it determines reasonable and appropriate to ensure EPAs compliance with relevant CWA and judicial requirements. EPA shall provide reasonable notice to DEQ of any such steps.

XIV. Property Rights

The parties recognize that the Oregon State Constitution reserves the waters of the State for the people of Oregon for their common use; such waters are subject to appropriation as provided for by State law. No TMDL, Wasteload Allocation, or Load Allocation established by EPA or DEQ shall create or vest any property rights, including but not limited to any water rights, in any person, provided that DEQ can apply for instream water rights from the Oregon Water Resources Department.

XV. Reservation of Rights

A. In executing the Memorandum of Agreement, DEQ does not waive any rights it may have to challenge EPAs interpretation or implementation of any CWA provision, including but not limited to regulations, guidance, and policies related to CWA 303(d), in any administrative or judicial forum. EPA does not waive its right to challenge DEQs interpretation or implementation of the requirements of 303(d), to approve or disapprove any TMDLs proposed by the State, or to establish TMDLs as otherwise required by law.

B. This Memorandum of Agreement does not constitute an explicit or implicit agreement by DEQ or EPA to subject itself to the jurisdiction of any federal or State court. Nor shall this Agreement be construed as creating any right or benefit, substantive or procedural, enforceable at law or in equity, by any person or entity against EPA or DEQ. This Agreement shall not be construed to create any right to judicial review involving the compliance or noncompliance of EPA or DEQ with this Agreement.

XVI. Amendments

A. EPA and DEQ agree that difficulties may arise in implementing requirements of 303(d). Therefore, both parties agree to periodically evaluate this Memorandum of Agreement and make recommendations for alterations and amendments. This Agreement may be amended by mutual agreement of EPA and DEQ. Such amendments shall not be binding unless they are in writing and signed by personnel authorized to bind each of the parties.

B. The parties anticipate that, during the life of this Agreement, there may be changes to the Clean Water Act, EPAs implementing regulations and guidance, and State statutes and regulations that pertain to matters addressed in this Agreement. Where EPA and DEQ determine that new provisions in statutes, regulations, or guidance are inconsistent with this Agreement, the statutes, regulations and guidance shall govern. In such cases, EPA and DEQ will amend this Agreement as provided in paragraph A. However, in cases where EPA and DEQ determine that provisions in this Agreement are merely different from new statutes, regulations and guidance, but not inconsistent with those statutes, regulations and guidance, then the provisions in this Agreement shall continue in force.

XVII. Communications and Dispute Resolution

A. While implementing this Agreement, EPA and DEQ are committed to on-going, timely and open communications. EPA and DEQ commit to the identification of issues and problems at early stages of development in order to provide time to plan potential resolutions in furtherance of this Agreement.

B. Each party to the Agreement will identify in writing a staff person who will serve as the primary contact for activities under this Agreement, and will notify the other party when the primary contact is replaced.

C. Communications concerning major documents, comments, and major decisions shall be in writing. Verbal communications on important matters will be followed by written notification as soon as possible.

D. EPA and DEQ will generally communicate and strive to address matters at a staff level. In the event that staff are unable to resolve a dispute, the staffs will present the matter to progressively higher levels of management until consensus is reached. In the event consensus is not reached, the Director of DEQ and the Regional Administrator of EPA Region X shall resolve the matter.

XVIII. Period of Performance

A. Subject to its other provisions, the period of performance of this Agreement shall commence when it is signed by the parties hereto. This Agreement, and all obligations arising hereunder, shall terminate on June 30, 2007. Specific commitments and agency roles and responsibilities will be incorporated into the biennial State-EPA Performance Partnership Agreement (PPA) after June 30, 1998.

B. Notwithstanding subsection A above, either of the parties may terminate this Agreement upon 180 days prior written notification to the other party.

XIX. Severability

If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of the Agreement, and to that end the provisions of this Agreement are declared to be severable.

XX. All Writings Contained Herein

This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of the Agreement shall be deemed to exist or to bind either of the parties hereto.

 

DATED this ______________ day of ____________________, 2000.

 

United States Environmental Protection Agency

 

By: _________________________________

Chuck Clarke

Regional Administrator

U.S. Environmental Protection Agency

 

State of Oregon, Department of Environmental Quality

 

By: _________________________________

Langdon Marsh

Director

Oregon Department of Environmental Quality

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