Summary of a Recent
Judicial Development in
Clean Water Act

Tentative or Preliminary Agency Decisions Not
Subject to Judicial Review

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Hawes v. State, 125 P.3d 778 (Or. Ct. App. 2005), the Oregon Court of Appeals vacated the judgment of the trial court, which had enjoined the Oregon Department of Environmental Quality (DEQ) from adopting load limits on the Burnt River. The appellate court remanded the case with instructions to enter a judgment of dismissal because the agreement between the DEQ and the Environmental Protection Agency (EPA) was not a final order within the meaning of the Administrative Procedures Act (APA), and therefore could not be reviewed by the trial court.

Background

Two ranchers anticipated that the DEQ would soon develop load limits for the Burnt River that would limit their use of land adjoining the river for agricultural activities. Id. at 779-80. Pursuant to the APA, the ranchers challenged the DEQ's authority to regulate nonpoint source streams, like the Burnt River. Id. at 780. The ranchers alleged that the Burnt River was a nonpoint source of pollution and therefore outside of the DEQ's Clean Water Act (CWA) regulatory authority. Id. Agreeing with the ranchers, the trial court held that the DEQ lacked the authority to create load limits, and enjoined the DEQ from adopting load limits on the Burnt River. Id.

Arguments

The ranchers argued that the DEQ did not have the authority to develop load limits on the Burnt River because it was a nonpoint source of pollution, and thus was outside of the DEQ's authority pursuant to the CWA. Id.

The DEQ argued that the trial court lacked jurisdiction to review the agreement between the DEQ and the EPA because it was not a final order within the meaning of judicial review provisions. Id.

Analysis and Holdings

The court held that, under Oregon Revised Statute § 183.484, circuit courts have jurisdiction to review final agency orders. Id. at 782. "[A] '[f]inal order' does not include any tentative or preliminary agency declaration or statement that . . . (A) [p]recedes final agency action, or (b) [d]oes not preclude further agency consideration of the subject matter of the statement or declaration." Id. (citing Or. Rev. Stat. § 183.310(6)(b)). The court concluded that the agreement between the DEQ and the EPA was not a final order because the agreement preceded final agency action. Id. Because the trial court lacked jurisdiction to review the agreement, the court did not address the other arguments.

The case was decided on December 14, 2005.