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Federal Judge Orders Oregon To Produce New Water Quality Standards For Several Basin Rivers
Posted on Friday, December 14, 2018 (PST)

A court ordered the Environmental Protection Agency to work with plaintiffs in a clean water suit to set a schedule for when it can redo clean water standards for temperature in a number of Oregon streams.

 

EPA said it could take as long as 12 years to complete the new water quality standards for each of the water bodies: the court said it should take far less time.

 

A schedule to complete the numerous Total Maximum Daily Load requirements for water temperature, according to presiding U.S. District Court Judge Marco A. Hernandez, must be presented to the court by March 11, 2019.

 

“After waiting decades for the agencies to establish and then use temperature goals for Oregon waters that are safe for salmon, it is gratifying to see the end in sight,” said Nina Bell, Executive Director of NWEA. “It’s always been a cynical ploy for Oregon to use clean-up plans as a means to set temperature goals that are lethal to salmon.”

 

Temperature is Oregon’s most widespread pollution problem, imperiling threatened and endangered salmon, steelhead, and bull trout populations, NWEA said.

 

TMDLs are required by the federal Clean Water Act. Previously, NWEA obtained a court order that prohibited DEQ from using the TMDL clean-up plans to override temperature standards that protect salmon, NWEA said in a news release. It continued, saying that temperature standards are generally 16 to 18 degrees Celsius (61 to 64 degrees Fahrenheit), but that the Oregon TMDLs established temperatures as high as 32 degrees C (90 degrees F).

 

At the heart of plaintiff Northwest Environmental Advocates’ claims, according to Hernandez’ Dec. 12 opinion and order, is EPA’s 2004 approval of new water quality standards for temperature in a number of river systems and water bodies in Oregon.

 

“The 2004 WQS contained numeric temperature criteria that were designed to ensure the temperature of the relevant water bodies met the biological needs of various salmonids at various life stages. The 2004 WQS, however, also contained narrative criteria known as the ‘natural conditions criteria’ (NCC), which provide: Where the [Oregon Department of Environmental Quality] determines that the natural thermal potential of all or a portion of a water body exceeds the biologically-based criteria . . . the natural thermal potential temperatures supersede the biologically-based criteria and are deemed to be the applicable temperature criteria for that water body.”

 

In essence, the NCC can allow higher water temperatures than the biologically-based criteria in most waterbodies and systems relevant to this case and in at least some instances the NCC-based temperature criteria were substantially higher than the biologically-based criteria, Hernandez wrote in his order.

 

Hernandez continues in his order, saying that the difference between the NCC-based TMDLs and the biologically-based TMDLs “could affect on-the ground restoration and rehabilitation efforts because it could lead to the misprioritization of projects and the misallocation of state, municipal, and nongovernmental resources. Moreover, it stands to reason that if the TMDLs carried with them more stringent temperature requirements, the TMDL-driven restoration and rehabilitation projects would have to be more aggressive to ensure the river systems attain the applicable criteria.”

 

In 2012, a U.S. District Court in Oregon struck down the NCC, but the existing TMDLs remained in place, so NWEA filed the current case that covers the EPAs approval of temperature TMDLs in rivers basins, such as the Willamette, Rogue, Umpqua, Grande Ronde, John Day, Klamath, Umatilla, Middle Columbia/Hood, Malheur, Snake, and Sandy rivers.

 

The court also rejected EPA’s attempt to avoid a previously-ordered April 2019 deadline to complete TMDL clean-up plans for unsafe levels of mercury pollution in the Willamette River basin and temperature in the Klamath River basin, according to NWEA.

 

It also said that the court’s order is similar to but different from another court’s order in October that instructed the EPA to complete a temperature TMDL for the Columbia and lower Snake rivers within 90 days.

 

(See CBB, October 26, 2018, “Federal Court Orders EPA To Complete Water Temperature Protections For Columbia/Snake Salmonids,” http://www.cbbulletin.com/441724.aspx)

 

The current order by Hernandez order also covers the Snake River along the Oregon-Idaho border, including the Hells Canyon dam complex, downstream to river mile 188 at its confluence with the Salmon River.

 

NWEA is represented by Bryan Telegin, of Bricklin & Newman (Seattle), and Allison LaPlante, of the Earthrise Law Center at Lewis and Clark Law School.

 

Also see:

 

-- CBB, November 30, 2018, “Court Settlement Commits Oregon DEQ To Clearing Backlog Of Water Quality Permits,” http://www.cbbulletin.com/441837.aspx

 

-- CBB, March 10, 2017, Groups Ask Court To Address Oregon Water Pollution Permitting Program,” http://www.cbbulletin.com/438446.aspx

 

-- CBB, April 12, 2013, “Judge Signs Agreement Requiring EPA To Get Tougher On Oregon’s Water Temperature Standards For Fish,” http://www.cbbulletin.com/426041.aspx

 

-- CBB, October 5, 2012, “Northwest Environmental Advocate Challenges Oregon’s Clean Water Act Decisions,” http://www.cbbulletin.com/423214.aspx

 

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