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NW Fishletter #390, February 4, 2019
 Columbia Riverkeeper Appeals Court Decision That Allowed Another EPA Delay
Columbia Riverkeeper and other conservation groups filed an appeal Jan. 14 in the 9th U.S. Circuit Court of Appeals seeking to overturn a federal court ruling that allows the EPA to delay developing plans to deal with temperature issues in the Snake and Columbia rivers.
This means the court will be considering two appeals in Columbia Riverkeeper et al. v. Andrew Wheeler et al., one from defendant EPA and a second from the plaintiffs.
U.S. District Judge Ricardo Martinez on Oct. 17 found that Washington and Oregon had declined to create plans for adhering to temperature standards in the Snake and Columbia rivers, leaving the responsibility to the EPA. He gave them 60 days to complete the job.
EPA appealed that ruling, and convinced Martinez to delay his deadline until after the appeal was heard. Columbia Riverkeeper is now appealing Martinez's ruling that stays the EPA's requirement to issue total maximum daily loads pending its appeal.
"We feel like this appeal is a lot about when this TMDL will get issued," Miles Johnson, an attorney for Columbia Riverkeeper, told NW Fishletter, "The stay allows the EPA to drag its feet for the next year or two as the 9th Circuit decides this case. So we're moving to get the stay pending the appeal dissolved, which would require EPA to issue the TMDL in a more timely fashion," he said.
Johnson said that even though it appealed the judge's ruling, the EPA has told the court that it will keep working to finalize the TMDL as the appeal process goes forward. He said the agency could have the plans for meeting temperature standards on the two rivers completed, but delay releasing or implementing them until a final decision on its appeal is complete.
"If the EPA thinks the law about TMDLs should be different and wants to litigate that at the 9th Circuit, that's one thing," Johnson said. But that argument should not result in the continuing temperature pollution of the Columbia and Snake rivers, he said. "We're trying to get real relief on fish kills in the Columbia Basin, and we'd like to see that happen as soon as possible," he said. -K.C. Mehaffey
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