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.
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
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.
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.”
is Oregon’s most widespread pollution problem, imperiling threatened and endangered
salmon, steelhead, and bull trout populations, NWEA said.
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).
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
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.”
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
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.”
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.
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.
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.
CBB, October 26, 2018, “Federal Court Orders EPA To Complete Water Temperature
Protections For Columbia/Snake Salmonids,” http://www.cbbulletin.com/441724.aspx)
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.
is represented by Bryan Telegin, of Bricklin & Newman (Seattle), and
Allison LaPlante, of the Earthrise Law Center at Lewis and Clark Law School.
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