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NW Fishletter #388, Dec. 3, 2018

[11] EPA Preserves Appeal Option On Water Temperature Ruling

The EPA on Nov. 23 appealed a U.S. District Court order requiring the agency to issue standards for water temperature in the Snake and Columbia rivers in the 9th U.S. Circuit Court of Appeals. But the agency revealed in a different motion that it is still deciding whether to pursue the appeal, called its notice of appeal "protective," and later states, "At this time, the United States Department of Justice's Office of the Solicitor General is determining whether to pursue an appeal in this case."

The agency has now asked the court to delay its Oct. 17 order in Columbia Riverkeeper et al., v. Andrew Wheeler et al. until the appeals process is complete, while plaintiffs in the case object.

In his Oct. 17 ruling, Chief U.S. District Judge Ricardo Martinez determined that Washington and Oregon had declined to produce temperature standards for the rivers, in the form of a Total Maximum Daily Load, leaving the responsibility to the EPA. He gave the agency 60 days to complete the task.

A Nov. 21 motion asks Martinez to stay his order pending the appeal. The delay is warranted, the motion states, if the agency establishes several things, including that it is likely to succeed on appeal and that it is likely to suffer irreparable harm if a stay is not granted.

The motion then explains why the EPA is likely to succeed, and says if it complies with the order, the appeal would be moot. It also argues that issuing a TMDL within 60 days would impose a significant hardship for a process that routinely takes three to five years.

On Nov. 28, Columbia Riverkeepers asked the judge to deny EPA's motion.

"[R]ather than proceeding to issue the temperature TMDL within the 30-day deadline set by the [Clean Water Act] and the Court's order, or approaching Riverkeeper to negotiate a reasonable schedule for TMDL issuance as suggested by the Court, EPA is moving for an indefinite stay pending appeal," their filing said.

It added, "Delay has been the hallmark of EPA's approach to the TMDL for the last two decades, and EPA's requests for additional delays have punctuated this litigation. There is no reason for further delay and every reason for swift action to protect Columbia and Snake river salmon and steelhead."

The judge's Oct. 17 ruling held that EPA violated the Clean Water Act by failing to set limits for temperature in the Columbia and Snake rivers, and gave the agency 30 days to approve or disapprove a TMDL submissions by the states of Washington and Oregon for a TMDL (total maximum daily load for temperature)--which were never issued--and another 30 days to issue its own standards for water temperature.

According to the judge's ruling, EPA made agreements with both states in 2000 to issue the water temperature standards due to its expertise and the multi-jurisdictional nature of the rivers, while the states retained the authority to issue standards for total dissolved gas. The agency never issued the TMDLs, and environmental groups sued to force it to act.

Prompted by the death of some 250,000 sockeye in 2015--when river water temperatures reached lethal levels--the five environmental groups that sued the EPA objected to the agency's request for an extension of time in an Oct. 31 reply. -K.C. Mehaffey

Idaho Power and the EPA have asked a federal court to delay all proceedings in Idaho Power Company v. United States Environmental Protection Agency et al. to provide time for the agency to "take certain steps toward resolving the issues in this litigation."

The company claims EPA failed to either approve or disapprove a water temperature standard in a section of the Snake River that was submitted by the Idaho Department of Environmental Quality.

According to the lawsuit, the state asked the EPA in 2012 to change the water temperature standard below Hells Canyon Dam, as required under the Clean Water Act. The federal agency's failure to act has complicated Idaho Power's application for a new 50-year license to operate the three projects in the Hells Canyon Complex.

Idaho Power says the new standard, which would allow a 2.7-degree increase in maximum water temperature from Oct. 23 to Nov. 7, is within Clean Water Act standards and fully protects Snake River fall Chinook.

According to the joint request, EPA has not responded to Idaho Power's complaint, and after further court filings, the agency's answer is due by Nov. 12. The court also issued other deadlines in the case.

The joint filing notes that discussions between Idaho Power and EPA since the complaint was filed about expected EPA actions "may moot the issues in this litigation."

It says that EPA is consulting with other federal agencies, and anticipates that a biological evaluation will continue throughout the winter, and expects to either take action on the water quality standard submitted by the Idaho DEQ, or submit a relevant standard by March 1, 2019.

If EPA has not taken action by March 11, 2019, the parties agree the stay should end, and the agency will respond to Idaho Power's complaint by March 30, 2019, the filing says.

If EPA requests formal consultation with other agencies, both parties will seek a joint motion to continue the stay. -K.C. Mehaffey

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NW Fishletter is produced by NewsData LLC.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
Phone: (206) 285-4848 Fax: (206) 281-8035

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