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NW Fishletter #389, January 7, 2019

[7] EPA Faces New Court Order Over Oregon's Water Temperature Plans

After finding more than a year ago that water temperature cleanup plans for rivers across Oregon must meet the biological needs of fish, a federal judge has asked the EPA, the state of Oregon and an environmental group to work together to develop a schedule to update those plans.

In a Dec. 12 opinion and order in Northwest Environmental Advocates v. U.S. Environmental Protection Agency, U.S. District Judge Marco Hernández rejected both EPA's request for 12 years to come up with new plans, but also did not order new plans in 120 days, as NWEA sought. The state of Oregon is an intervenor-defendant in the case.

Recognizing it will take longer than three months, and also that 12 years is "unreasonable," Hernández encouraged the parties to meet and formulate a "TMDL-by-TMDL schedule" for changing each waterway's cleanup plan from one based on natural condition criteria to one based on the biological needs of salmon and steelhead. He wants a joint schedule by March 11. "If necessary, the court will schedule an additional hearing to resolve any remaining disputes," Hernández wrote.

The judge also rejected the EPA's request for more time to develop two specific TMDLs, and ordered the agency to adhere to an April 2017 order giving it two years--until April 11, 2019--to complete a TMDL for mercury pollution in the Willamette River, and for temperature in the Klamath River.

TMDLs, or total maximum daily loads, are plans to restore impaired water bodies required under the federal Clean Water Act. They identify the maximum amount of pollutants that water bodies can receive and still meet water quality standards, including standards for temperature.

NWEA applauded the decision. "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," Nina Bell, NWEA's executive director said in a news release.

The case is similar to an October ruling in U.S. District Court in Seattle--Columbia Riverkeeper et al. v. Scott Pruitt et al.--in which a judge ordered the EPA to develop TMDLs in large portions of the Snake and Columbia rivers. States are generally charged with developing the cleanup plans for their own waters, and the EPA approves them. The duty falls to the EPA when states fail to develop a plan.

The EPA is appealing that decision in the 9th U.S. Circuit Court of Appeals.

In the Oregon case, the EPA had approved Oregon's TMDLs for temperature in numerous rivers and other water bodies throughout Oregon--including portions of the Snake and Columbia rivers that border Oregon--and the Willamette, Rogue, Umpqua, Grande Ronde, John Day, Klamath, Umatilla, Hood, Malheur and Sandy rivers.

Those TMDLs contained criteria requiring that the biological needs of salmonids are met at various life stages, but included "natural conditions criteria" that superseded the biological criteria. The natural conditions criteria allowed for higher water temperatures as long as those temperatures were not the result of human activities.

According to the judge's ruling, that allowed for higher water temperatures than the biologically-based criteria in most water bodies--in some instances, substantially higher. In a news release, NWEA said that biologically-based TMDLs would limit water temperatures to between 16 C and 18 C (61 F to 64 F), while under natural conditions criteria, water temperatures in some waterways could go as high as 32 C (90 F), which can kill salmon within seconds.

But, the judge wrote, the EPA and Oregon contend that practical differences between the natural conditions criteria and biological criteria are "modest or nonexistent," because the TMDLs also include a "human use allowance," meaning human activities can only cause water temperatures to exceed temperature limits by 0.3 C (0.54 F), including all point and nonpoint sources.

While the EPA and Oregon contend that the regulation is functionally controlled by the minimal increase allowed by human sources, Hernández found that the purpose of TMDLs is not only to set limits on pollution, but also to bring impaired waters into compliance with "applicable criteria."

Allowing for natural conditions criteria rather than biologically based criteria "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," the judge ruled. -K.C. Mehaffey

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NW Fishletter is produced by NewsData LLC.
Publisher/Editor-in-Chief: Mark Ohrenschall, Editor: K.C. Mehaffey
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