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NW Fishletter #369, May 1, 2017

[5] Federal Judge Directs Oregon to Remedy High Temperatures in Rivers

The EPA and Oregon Department of Environmental Quality failed to protect salmon species from high temperatures in Oregon rivers, a federal court ruled April 11.

District Judge Marco Hernandez, with the U.S. District Court for the District of Oregon, agreed with Northwest Environmental Advocates that the Oregon Department of Environmental Quality's temperature-remediation plans specified total maximum daily loads (TMDLs) that allowed high water temperatures harmful to salmon and steelhead.

Hernandez also affirmed that the EPA must comply with the Endangered Species Act in approving the state's plans.

Although Portland-based NWEA has been battling over Oregon and Columbia River water quality for some three decades, this case--Northwest Environmental Advocates v. U.S. Environmental Protection Agency [12-01751]--dates from 2012.

The Oregon temperature TMDLs currently at issue were based on a rule called "natural condition criteria."

An earlier court invalidated that rule in 2012, even though National Marine Fisheries Service and U.S. Fish and Wildlife Service had agreed with EPA's conclusion that "criteria based on natural conditions" were "fully protective of salmonid uses, even if the natural conditions are higher than the numeric criteria for some waterbodies, because river temperatures prior to human impacts clearly supported healthy salmonid populations."

Oregon DEQ used the rule to issue temperature-cleanup plans, allowing the agency to change water-quality standards for temperature without federal agency review, contrary to Clean Water Act requirements, according to the Hernandez opinion.

"In some instances," an April 13 NWEA news release said, "Oregon raised allowable temperatures to levels lethal to salmon within seconds."

Hernandez' decision largely adopts the recommendations of U.S. Magistrate Judge John Acosta's October 2016 ruling.

After the 2016 findings, NWEA Executive Director Nina Bell said in a statement, "This decision puts the lie to Oregon's claim that it is trying to protect salmon and steelhead."

She added, "The big reveal is that the emperor has no clothes. Oregon stands naked with nothing to show for itself but trying to justify giving cold water species on the brink of extinction a bath in hot water."

The state will have to redo its TMDLs, according to Bell, although the timeline is unclear. The judge didn't set a schedule.

No one from Oregon DEQ responded to NW Fishletter.

The court gave EPA and Oregon DEQ two years to submit a new TMDL for mercury in the Willamette River basin. -Laura Berg

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