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Court Orders New Biological Opinion, Jeopardy Analysis On Oregon’s Water Temperature Standards
Posted on Friday, March 02, 2012 (PST)

A federal court in Portland this week sent three federal agencies back to the drawing board on their review of how Oregon regulates the temperatures of its rivers and streams to protect salmon, steelhead, and bull trout.


The federal court ruled Tuesday in a case brought by the Portland, Ore.-based Northwest Environmental Advocates in 2005 that challenged numerous aspects of Oregon’s water quality standards for temperature under two federal laws, the Clean Water Act and the Endangered Species Act.


The decision can be found at:


“This decision is a significant victory for salmon,” said Nina Bell, NWEA executive director. “Federal agencies can no longer look the other way when states refuse to apply water quality standards to the very human activities that cause unsafe water temperatures. After 20 years of trying to get it right, we hope that this decision pushes Oregon and the federal government to protect cold water fish from the special interests who would prefer to do nothing while salmon and other fish edge towards extinction.”


The lawsuit is the second time NWEA has successfully challenged the U.S. Environmental Protection Agency’s approval of Oregon’s temperature standards. Because temperature is a widespread problem that affects reproduction, growth, and disease levels of salmon, the EPA action is also subject to review by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service under the ESA.


NWEA’s lawsuit challenged the actions of all three federal agencies. The case involved numerous claims. The court found in NWEA’s favor on most, but not all, of the CWA claims.


Among the most important provisions the court struck down was EPA’s approval of an Oregon Department of Environmental Quality rule that allows the agency to automatically replace its other criteria with temperatures it deems “natural,” without any subsequent federal agency review. A provision widely used by DEQ, it has generated allegedly natural temperatures as high as 32degrees C (90 degrees F), compared to the 18 degree C (64 degree F) numeric criterion that the court found was, while high, acceptable for fish, according to the NWEA.


EPA had claimed that Oregon promised the superseding temperatures would represent only natural temperatures with no human influences.


“Oregon and the federal agencies have misled the public in setting these high temperatures for salmon and calling them ‘natural’ when they are not natural at all,” according to Bell. “The court saw through EPA’s arguments.”


“Not only is this case important for Oregon water quality and salmon but it has important national implications as well,” said Allison LaPlante, staff attorney with the Pacific Environmental Advocacy Center at Portland’s Lewis and Clark College, one of NWEA’s lawyers on the case.


“The court ruled that EPA could not allow Oregon to essentially exempt the very human activities -- logging and farming -- that cause water temperatures to soar,” LaPlante said. “EPA cannot stand in the sidelines when a state attempts an end-run around the Clean Water Act.”


LaPlante said “the court also found that EPA had failed to do precisely what an earlier court had ordered in 2003, namely to make sure that Oregon had an implementation plan to protect its waters from degrading. This is an important national precedent.”


The court found in NWEA’s favor on all of its ESA claims, which will result in new reviews of EPA’s action. A court ordered remand would involve official ESA “consultation” between EPA and the two fishery agencies aimed at developing new biological opinions to judge whether the temperature standards approved by the federal agency threaten the survival of the listed salmon, steelhead and bull trout stocks.


U.S. Magistrate Judge John V. Acosta’s order said that “the NMFS shall analyze the impacts of the water quality standards on each individual ESU” as well as conduct a thorough recovery analysis. “Environmentally significant units” are groupings of genetically and geographically related fish populations, Snake River fall chinook, as an example.


He also said that “Upon remand, the NMFS shall reconsider the effects of the EPA's approval of Oregon's water quality standards. In doing so, the NMFS shall make its jeopardy analysis on the biological needs of the listed salmonids in the context of the environmental baseline and shall not justify its conclusions based on the simple fact that attainment of the standards would constitute an improvement in water quality.”


“The court found the federal agencies’ approvals were fundamentally flawed and specifically that they had failed to consider how Oregon’s temperature standards would affect some species more than others,” said LaPlante. “In addition, the court found the U.S. Fish and Wildlife Service may have placed political feasibility over science.”


“The record suggests that the FWS may have considered inappropriate factors outside what could be considered the best scientific data available,” according to the judge, including temperature standards beyond the optimal range for bull trout.


“Accordingly, the court concludes that extra-scientific considerations have rendered the FWS's determinations arbitrary and capricious. Upon remand, the FWS shall only consider those factors Congress intended the agency to consider,” the judge said.


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