A lawsuit filed Sept. 27 in federal court challenges clean-up plans developed by Oregon under the Clean Water Act to address what the plaintiff – the Northwest Environmental Advocates – describes as widespread temperature pollution of the state’s waters.
The complaint filed by the Portland-based NWEA says the U.S. Environmental Protection Agency erred by allowing the state of Oregon to automatically change its temperature water quality standards without federal agency review
The NWEA complaint challenges EPA’s actions in approving Oregon’s temperature “total maximum daily loads” between Sept. 29, 2006 and Dec. 17, 2010. A TMDL is a water quality management device that determines the total amount of pollution that may enter a water body on a daily basis while still meeting all applicable water quality standards.
“The Oregon Department of Environmental Quality invoked an illegal rule each and every time it issued a clean-up plan,” according to Nina Bell, NWEA executive director. “Ironically, the clean-up plans have had the effect of setting temperature goals for Oregon’s waters that are far above the temperatures all the federal agencies agree are acceptable for cold-water fish such as salmon and steelhead.”
Each clean-up plan or TMDL issued since 2004 has changed Oregon’s water quality standards, the NWEA says. In contrast to the EPA-approved numeric criteria in Oregon - standards that generally allow temperatures up to 18 degrees C (64 degrees F) in Oregon’s waters - Oregon’s TMDLs changed the criteria to as high as 32 degrees C (90 degrees F), the NWEA says.
Oregon claims these temperatures approximate natural temperatures before widespread human development, the environmental organization says.
Bell called the new lawsuit a logical outgrowth of a previous case.
“Once the court ruled that Oregon should not have changed its temperature standards without any review by the federal agencies, it only made sense that we would seek to reverse the changes Oregon DEQ made illegally,” said Bell. “Oregon has twisted what should have been its effort to restore the cold waters needed by fish and frogs into a process that has attempted to sanctify temperatures that would never have passed federal agency approval.”
Each TMDL contains limits for contributions of pollution from point and nonpoint sources. For point sources, which are regulated under federal CWA permits, the TMDL sets the upper limit for their discharge once the permits are renewed. TMDLs should have the effect of changing nonpoint source practices, such as for logging and farming, that cause the greatest changes in water temperatures, the NWEA says.
Of waters that DEQ and EPA have found to be impaired in Oregon, the vast majority are impaired by high temperatures.