A U.S. District Court in Washington ordered
the Environmental Protection Agency to set temperature limits, known as total
maximum daily load, in the Snake and Columbia rivers to protect threatened and
endangered salmon and steelhead.
The states of Washington and Oregon had
submitted temperature TMDLs to the EPA, but in 2000, the states and others in a
memorandum of understanding with the EPA, agreed that the federal agency would
develop the temperature TMDL and that the states would be responsible for total
dissolved gas TMDLs. The EPA has failed during the 18 year period to develop
the temperature limits.
According to Judge Ricardo Martinez in the
U.S. District Court, Western District of Washington, Seattle, in his Oct. 17,
2018, Order on Motions for Summary Judgement “When water temperatures approach
68° F, adult salmon have difficulty migrating upstream, and at 72-73° F,
migration stops altogether. Salmon that have stopped or slowed in their
migration may end up staying in the warm water, where they are at risk of
death, disease, decreased spawning productivity, and delayed spawning.”
He continued saying that both plaintiffs and
defendants in the case agree that the potential causes for increased water
temperatures in the two rivers “appropriately lies on the presence of dams and
point source dischargers located on both rivers.”
Martinez’ order is at: https://www.columbiariverkeeper.org/sites/default/files/2018-10/TempTMDLDecision%202018.10.17.pdf
Martinez gave the EPA 30 days to approve state
temperature TMDLs, or 30 more days to develop temperature TMDLs on its own if
it rejects the state-submitted TMDLs.
“Because of today’s victory, EPA will finally
write a comprehensive plan to deal with dams’ impacts on water temperature and
salmon survival,” said Brett VandenHeuvel, Executive Director of Columbia
Columbia Riverkeeper, Snake River Waterkeeper,
Idaho Rivers United, Pacific Coast Federation of Fishermen’s Associations, and
the Institute for Fisheries Resources brought the suit that they say was
sparked by record-high water temperatures in recent years, including an
incident in 2015 where 250,000 adult sockeye salmon died when the Columbia and
Snake rivers became too warm. The suit was first filed in the Western Washington
District Court Feb. 23, 2017.
The temperature TMDL is a federal Clean Water
Act pollution budget designed to protect salmon from hot water in rivers.
According to the order, the presence of high temperatures in the Columbia and
Snake rivers led Washington and Oregon – both for the first time in 1996 – to
place both rivers on their CWA Sec. 303(d) lists of impaired waters.
Washington’s current standards require that
temperatures must stay below 60.8-68° F depending upon the time of year,
location, and fish present. Oregon’s ranges from 55.4° F for some fish spawning
areas from the months of October to April, to 68° F year-round.
However, both state’s water temperature
standards include “natural conditions criteria” for temperature, which provide
that “if the natural temperatures in the water body exceed the numeric
biologically-based criteria, then the natural temperatures constitute the
applicable temperature criteria for that water body,” according to the court
order. “While the Environmental Protection Agency approved both states’ natural
condition criteria in the past, that EPA approval was overruled in part after
litigation in Oregon, and is currently involved in pending litigation in
“Our members’ livelihoods depend on healthy
salmon runs,” said Glen Spain, Northwest Regional Director of the Pacific Coast
Federation of Fishermen’s Associations and the Institute for Fisheries
Resources. “It’s simply unacceptable to let hot water kill otherwise-healthy
adult salmon before they can spawn. We’re glad EPA will finally do its job.”
The MOA was signed by the states of
Washington, Oregon and Idaho, Columbia Basin Tribes and EPA Region X Oct. 16,
2000 after Oregon and Washington had submitted their lists of Sec. 303(d)
impaired waters. It laid out an agreement among the parties that the EPA would
either approve the states’ TMDL proposals or develop a joint Columbia/Snake
river TMDL with the help of the states.
In addition, according to the order, each
state was designated to assist the EPA with the production of “significant
portions” of the implementation plans for the temperature TMDL, particularly
with regards to those sections related to non-point sources.
EPA developed a work plan that would have the
federal agency complete a draft temperature TMDL by February 2002 followed by a
90-day public comment period and a final TMDL by July or August 2002. The EPA
released a preliminary draft in July 2003.
“Since July 2003, the EPA has not issued a
final temperature TMDL, indicating in an internal EPA document that the EPA
worked ‘extensively on a draft TMDL until late 2003,’ with that work then
suspended due to disagreements between federal agencies at the national level,”
the Order says.
Once litigation had begun, the EPA sent an
Aug. 10, 2017 letter to the states requesting a modification of the MOA so that
direct work on the final TMDL could be resumed.
“In its letter, the EPA states that changed
circumstances involving technology, natural conditions, and legal challenges to
previous EPA and state standards necessitate a modification to the MOA prior to
the EPAs ability to issue any final temperature TMDL,” the order says.
Martinez goes on to say that since 2003 native
salmon and steelhead populations in the Columbia basin have continued to be affected
by warm water temperatures. In 2015, warm water was responsible for the deaths
of roughly 250,000 migrating adult sockeye salmon, with upper Columbia River
sockeye having the lowest survival rate in six years and Snake River sockeye,
listed as endangered under the federal Endangered Species Act, having a
survival rate of just 4 percent, the order says.
Native steelhead populations have also been
affected, with predictions on the 2017 run indicating that it had “collapsed,”
and with the Idaho Department of Fish and Game for the first time prohibiting
anglers from taking Snake River steelhead, according to the order.
"Hot water in the lower Snake and
Columbia rivers has been a year-in, year-out problem for endangered salmon,”
said Kevin Lewis, Executive Director of Idaho Rivers United. “This victory will
create more protections for endangered species that are an indelible part of
our northwest way of life, culture, economy and heritage."
"This decision represents a clear victory
for critically endangered salmon and steelhead populations” said Snake River
Waterkeeper Buck Ryan. “EPA must now act to protect what remains of the
once-magnificent anadromous fisheries on the Snake, Clearwater, and Salmon
rivers by ensuring water temperatures stay cool enough to allow passage for
--CBB, April 26, 2016, “Conservation Groups
File Notice To Sue EPA Over Columbia/Snake Water Temperatures,” http://www.cbbulletin.com/437375.aspx