federal court sided with an Oregon environmental organization this week in a
ruling that said the Environmental Protection Agency must comply with the
Endangered Species Act in approving water pollution clean-up plans.
lawsuit, brought by the Portland, OR-based Northwest Environmental Advocates,
challenged EPA’s approval of Oregon water pollution clean-up plans that are
intended to address the state’s widespread temperature problems.
clean-up plans in question, developed under the federal Clean Water Act, did
more than establish temperature limits for various pollution sources as
required, said the NWEA. The plans “actually changed Oregon’s temperature goals
from cold temperatures to hot—and sometimes even lethal—temperatures,” the
District Court Judge Marco A. Hernandez agreed with NWEA that EPA must comply
with the Endangered Species Act in approving the pollution clean-up plans,
called “Total Maximum Daily Loads” or “TMDLs.”
The court held that “EPA’s approval of the TMDLs is what allowed for
higher temperatures [that would harm the species].”
Oregon temperature TMDLs were based on a rule that an earlier court decision
threw out in 2012. Oregon had used the
illegal rule every time it issued a temperature clean-up plan,” said NWEA in a
press release following the ruling. “The rule had allowed the Oregon Department
of Environmental Quality (DEQ) to change state water quality goals for
temperature without any federal agency review or agreement, contrary to the
requirements of the Clean Water Act. In
some instances, Oregon raised allowable temperatures to levels that are lethal
to salmon within seconds.”
2003, EPA said that temperatures of 90º F are instantaneously lethal to salmon
at exposures under 10 seconds,” said NWEA Executive Director Nina Bell. “But that didn’t stop EPA from approving a
DEQ clean-up plan for streams and rivers in the Umpqua Basin that changed
Oregon’s water quality standards from 64º F to that same dangerously high
temperature of 90º F. If EPA had
consulted with the expert fish and wildlife agencies, as the court has just
ruled the Endangered Species Act requires, those scientists would have told EPA
that fish can’t live in lethally hot water.
This is why today’s court decision is so important.”
today’s action, the court also adopted the recommendations of a federal
magistrate judge, issued last October, that EPA’s approval of the Oregon
temperature TMDLs should be invalidated.
A TMDL contains limits for contributions of pollution via discharge
permits and polluted runoff from land activities such as logging and farming.
The vast majority of waters that Oregon has identified as having unsafe levels
of pollution, and which therefore require a TMDL, are impaired by high
court also gave EPA and Oregon DEQ two years in which to submit a new TMDL for
mercury in the Willamette River basin.
EPA had sought to voluntarily withdraw its approval of the Willamette
is represented in this lawsuit by Bryan Telegin of Bricklin & Newman, LLP
(Seattle) and Allison LaPlante of the Earthrise Law Center at Lewis and Clark
Law School (Portland).