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NW Fishletter #393, May 6, 2019
 EPA Lays Out Columbia-Snake Temperature Appeal Argument
The Environmental Protection Agency says the Clean Water Act does not require it to determine the causes of water temperature issues in the Snake and Columbia rivers, that Washington and Oregon have retained that duty, and that a U.S. District Court judge in Seattle erroneously transferred that task to the EPA.
Those are the main arguments made by U.S. Justice Department attorneys in its 71-page opening brief filed April 11 in the 9th U.S. Circuit Court of Appeals in Columbia Riverkeeper et al. v. Scott Pruitt et al. The EPA is appealing an October ruling that gave the federal agency 60 days to issue Total Maximum Daily Loads, or TMDLs, for water temperature in the Columbia and lower Snake rivers.
Under the Clean Water Act, TMDLs identify sources of water pollutants--in this case, high temperatures--and take first steps toward developing a plan to reduce them.
The judge's order is stayed until the appeals court rules.
In its appeal, the EPA argues that under the act, states must first set water-quality standards for each water body within their borders, and then develop a list identifying and prioritizing the water bodies that fail to meet those standards. States then develop TMDLs for EPA approval. "A TMDL does not restrict pollution, but is a planning tool, allowing permitting authorities to see the big picture and take regulatory actions to achieve water quality goals," the appeal states.
Pollutants are considered either point sources--those coming from a specific source--or nonpoint sources--from all other sources such as atmospheric deposition of pollutants or temperature increases. Point sources are required to get a federal National Permit Discharge Elimination System permit, while nonpoint sources are not, according to the appeal.
"Notably here, when water impounded behind a dam increases in temperature as a result of the impoundment, EPA considers that increase to result from a nonpoint source. EPA and the States therefore do not regulate most warming of waters behind dams through the NPDES permit program," the appeal says.
It also says that the act does not establish a time by which states must submit TMDLs, nor does it require the EPA to act if states fail to submit them. After a state submits a TMDL, the EPA has 30 days to either approve or disapprove it. If it disapproves the state's TMDL, the EPA has another 30 days to establish the TMDL in its place. According to the Clean Water Act, the only time EPA has a duty to establish a TMDL is when a state submits one and EPA disapproves it, the appeal says.
When--decades after the Clean Water Act was enacted--some states had not developed any TMDLs, a "theory" arose that "if a state fails over a long period of time to submit proposed TMDLs, this prolonged failure may amount to the 'constructive submission' by that state of no TMDLS," under which the EPA could be expected to develop TMDLs for that state, the appeal says. But courts have held that a constructive submission occurs only when there's a complete failure to submit any TMDLs, the appeal says. "Where a state has begun to fulfill its obligation to submit TMDLs to EPA, the courts of appeals have refused to find a constructive submission that triggers EPA's nondiscretionary duty," it says.
Washington and Oregon have each developed a "robust" TMDL program, with 1,578 TMDLs in Washington and 1,241 in Oregon, it says. Both states also have EPA-approved temperature standards of 13 to 20 degrees Celsius--depending on the location--for the Columbia and lower Snake rivers. Since the mid-1990s, Oregon has included the entire length of the Columbia River on its list of impaired waters, and Washington has included 49 of 96 segments of the Snake and Columbia rivers on its list. "The two states consequently have a statutory obligation ... to submit TMDLs for those waters for EPA's approval, but they have not done so," the appeal states.
The EPA says that it entered into an agreement with Washington and Oregon to develop a temperature TMDL cooperatively with tribes, states and federal agencies, due to the complexity involved and the coordination necessary between states. However, it claims, after the agreement was signed, Washington and Oregon asked EPA to issue the TMDL, and "EPA ultimately acknowledged the States' request without either granting or rejecting it," the appeal says. The agency produced a preliminary draft TMDL in 2003, but there were disagreements about the causes of increased temperatures, which some said had not changed significantly from natural conditions. Also, most of the warming in the river comes from nonpoint sources, including dam reservoirs, rising air temperatures and the temperatures of incoming tributaries, the appeal says.
"The intent behind the Draft TMDL was to provide modeling that would help stakeholders tackle these issues. However, that modeling confirmed that addressing point sources through EPA's existing authorities would not significantly contribute to the attainment of water quality standards," it says. The agency suspended its work when several stakeholders disputed the modeling and the dams' contributions to elevated temperatures, and states' proposals to amend water quality standards were being challenged in court.
Last October, a District Court judge found that EPA's obligation does apply when a state abandons an individual TMDL, and that the agreement between EPA and Washington and Oregon provided "strong evidence" that the states abandoned their obligation to develop a TMDL. According to the court, that triggered EPA's nondiscretionary duty to approve or disapprove the TMDL within 30 days. "The court also stated that it 'does not see how the EPA can approve the constructively submitted TMDL,' and it ordered EPA to issue a new TMDL within 30 days of any disapproval," the appeal says. EPA sought an extension, which was denied, but is continuing to work on the TMDL during the appeal, it says.
The plaintiffs--Columbia Riverkeeper, Idaho Rivers United, Pacific Coast Federation of Fishermen's Associations, Snake River Waterkeeper, Inc., and The Institute for Fisheries Resources--have until May 10 to respond to the opening brief. -K.C. Mehaffey
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