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NW Fishletter #387, Nov. 5, 2018

[1] Lawsuit Victory Forces EPA To Identify Sources Of Temperature Pollution

A U.S. District Judge in Seattle ordered the EPA on Oct. 17 to identify the sources of high water temperatures in the Columbia and Snake rivers, and take the first steps toward developing a plan to reduce those temperatures to protect fish.

"Because of today's victory, EPA will finally write a comprehensive plan to deal with the dams' impacts on water temperature and salmon survival," Brett VandenHeuvel, executive director of Columbia Riverkeeper, said in a news release.

The summary judgment by Chief U.S. District Judge Ricardo Martinez gives EPA 60 days to comply with his order favoring five conservation and fishing groups that filed a lawsuit against the agency last year. Columbia Riverkeeper et al. v. Scott Pruitt et al. claims the EPA violated the Clean Water Act by failing to issue a TMDL, or Total Maximum Daily Load, for temperatures in the Columbia and lower Snake rivers, and the judge agreed.

The EPA is considering whether to appeal the ruling. In an Oct. 25 motion, acting EPA Director Andrew Wheeler asked the judge to allow an additional 30 days to comply with the court's order "to complete its internal processes for assessing whether or not it will appeal the Court's decision."

If approved, EPA would have until Dec. 17 to take action.

Prompted by the death of some 250,000 sockeye in 2015--when river water temperatures reached lethal levels--the plaintiffs objected to the agency's request for an extension of time in an Oct. 31 reply.

The order applies to the lower Snake River, from its confluence with the Columbia River to Lewiston, Idaho; and in the Columbia River from its mouth to Grand Coulee Dam.

Joining Columbia Riverkeeper in filing the lawsuit were Snake River Waterkeeper, Idaho Rivers United, Pacific Coast Federation of Fishermen's Association, and the Institute for Fisheries Resources. They filed the suit about a year and a half after warm water temperatures in the Snake and Columbia rivers left roughly 250,000 adult sockeye dead as they attempted to migrate back upstream.

Miles Johnson, attorney for Columbia Riverkeeper, told NW Fishletter that conditions are only expected to worsen. "With climate change, as we get hotter and hotter, and less water in the system during drought years, it's turning a bad situation into a crisis," he said.

Johnson said the reservoirs created by dams are believed to be the major cause of warmer water in the Columbia and Snake rivers, especially on the lower Snake, and at the John Day and McNary dams on the lower Columbia. "They are big, shallow, slow-moving reservoirs out in a really hot part of Oregon and Washington, and they soak up the sun and become too hot," he said. Washington and Oregon have already set water temperature standards at 68 degrees, which, when exceeded for extended periods, can be harmful to salmon and steelhead.

Johnson said the TMDL is a study that identifies all the causes of warming water temperature in the two rivers, and develops a budget on how much each source will have to reduce temperatures in order to meet the standards. Washington and Oregon will then work to develop specific plans so the rivers can meet the standard for water temperature.

Colleen Keltz, spokeswoman for the Washington Department of Ecology's water quality section, said that once the EPA issues the TMDLs, the state agencies will still need to conduct lengthy studies and monitoring, and work with the public to develop a path forward. That process will have to be approved by the EPA, she said.

Johnson noted that Washington and Oregon had identified water temperature as a problem in the Columbia River Basin in the 1990s, and listed both rivers as impaired by water temperature. Because EPA was at the forefront of modeling and scientific studies needed to develop the TMDL, the responsibility given to states under the Clean Water Act went to the EPA instead. In 2000, the states signed a memorandum of agreement with EPA, which agreed to issue TMDLs for water temperature, while the states retained the TMDLs for total dissolved gas standards.

Martinez pointed to that MOA as a reason for his order, along with subsequent communications between the states and EPA. "[T]he Court concludes that Washington and Oregon have clearly and unambiguously indicated they will not produce a TMDL for these waterways," he wrote. "Whether rightly or wrongly, they placed the ball in the EPA's court, and the subsequent 17-year delay is strong evidence that the states have abandoned any initial step the EPA could possibly be awaiting."

The decision also notes that by 2003, the EPA had issued a draft TMDL for temperature which indicated that, while the responsibility to develop TMDLs generally falls to states, due to the interstate and international nature of waters in the Columbia basin, its relationship with tribal-trust duties, and the expertise required, the EPA agreed to take responsibility. According to the judge's decision, the draft stated that after a 90-day comment period, the agency would issue a final temperature TMDL for the Columbia and Snake rivers, but the final document was never released.

Johnson said that when the EPA found that dams were the major cause, the plan was shelved.

While ruling in favor of plaintiffs, the judge opted not to address their claim that the EPA violated the Administrative Procedure Act by failing to act for more than 17 years. He also declined to set a court-ordered deadline, writing that the court must abide by the timeline in the Clean Water Act, which allows a total of 60 days. According to his ruling, the plaintiffs expressed concern that EPA would delay issuing the TMDL for temperature, but the judge suggested the parties should work together to resolve the issue and avoid further court action.

Johnson said since the lawsuit was filed, the EPA has been working to update the draft TMDL from 2003. "It's not as though they're starting from scratch," he said. -K.C. Mehaffey

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Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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