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Federal Court Rules That Oregon Water Pollution Cleanup Plans Must Protect ESA Listed Fish
Posted on Friday, April 14, 2017 (PST)

A 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.

 

The 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. 

 

The 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 group contended.

 

Oregon 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].” 

 

“The 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.”

 

“In 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.”

 

In 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 temperatures.

 

The 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 Mercury TMDL.

 

NWEA 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).

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