After years of delay, the U.S. Environmental Protection Agency has 30 days to develop and issue technical documents outlining the causes of high water temperatures in the lower Snake and Columbia rivers, the 9th U.S. Circuit Court of Appeals ruled.
On Dec. 20, the panel of judges upheld an October 2018 U.S. District Court decision in Columbia Riverkeeper et al., v. Andrew Wheeler et al. by finding that Washington and Oregon had failed to develop the plans required under the Clean Water Act, triggering EPA's duty to develop them instead.
Those documents—known as total maximum daily loads, or TMDLs—are expected to identify hydroelectric dams as a major source of water temperature pollution and begin the process for finding ways to cool water in the lower rivers.
"Because Washington and Oregon have conclusively refused to develop and issue a temperature TMDL for the Columbia and Snake Rivers, the EPA is obligated to act," the court's opinion, written by Judge M. Margaret McKeown, concludes. "This constructive submission of no TMDL triggers the EPA's duty to develop and issue its own TMDL within 30 days, and it has failed to do so. The time has come—the EPA must do so now," she wrote.
Five conservation and fishing groups initially filed the lawsuit against EPA in February 2017, not long after record-high water temperatures in 2015 caused an estimated 250,000 returning adult sockeye to die before reaching their spawning areas in the upper Snake and Columbia rivers. Plaintiffs include Columbia Riverkeeper, Snake River Waterkeeper, Idaho Rivers United, Pacific Coast Federation of Fishermen's Association and the Institute for Fisheries Resources.
The decision means EPA will finally write a comprehensive plan to deal with the impact of hydroelectric dams on water temperature and fish survival, said Brett VandenHeuvel, Columbia Riverkeeper's executive director. "It's been a long time coming," he told NW Fishletter.
EPA spokesman Mark MacIntyre said the agency has no comment on the ruling at this time.
The appeals court ruling noted that in 2000, Washington and Oregon entered into a memorandum of agreement with EPA under which the federal agency agreed to produce a temperature TMDL for the Snake and Columbia rivers, while the states worked on issuing TMDLs for total dissolved gas. The states would then help implement the temperature TMDLs, the ruling states.
In July 2003, the EPA published a draft temperature TMDL and expected to release a final TMDL after a 90-day comment period, the court said. "Due to opposition from other federal agencies, however, the EPA did not take any further steps to develop or issue a final temperature TMDL," the ruling states. Since 2003, no progress has been made by EPA or either state to develop a temperature TMDL, although EPA continued to acknowledge it was responsible for development of the temperature TMDL as late as 2007, it said.
"The parties agree that dams and more than 100 point-source discharges into the two rivers are a primary cause of rising water temperatures, which in recent years have consistently exceeded 68 degrees for much of the summertime salmon and steelhead runs. Temperatures are projected to rise with increased human activity on the rivers, further endangering salmon and trout populations," the ruling says.
VandenHeuvel said EPA's draft temperature TMDL from 2003 found point sources from industry and tributary temperatures are insignificant when it comes to water temperature in the lower Columbia and Snake rivers. "For the main stem, the dams are the culprit," he said. "The reservoirs are so big, and so shallow, and absorb so much heat that things like planting trees in tributary streams—which is a good thing to do—[are] not going to address the problem," he said.
VandenHeuvel said EPA's draft water temperature TMDL in 2003 allocated specific loads—or pollution levels—contributed by each dam, but did not specify actions to be taken to resolve the temperature problem.
"That's the point of the TMDL—to do this analysis and create a plan moving forward, and look at different options," he said. While it will be up to EPA and state agencies to come up with potential solutions, Columbia Riverkeeper supports removing the lower Snake River dams or drawing down the reservoirs to reduce water surface area in the summer months as options to cool the water, he said.
VandenHeuvel said climate change is another main factor contributing to the rising temperatures in the Snake and Columbia rivers. "Dams create the hot water problem, but climate change is pushing it over the edge. It's definitely a situation we've let go, and ignored, for far too long," he said.
VandenHeuvel said it's unclear at this point whether the EPA will complete its TMDL and issue it in January, or seek some kind of reprieve from the courts.
In upholding the district court decision, the appeals court quoted the lower court, which found that "Washington and Oregon have clearly and unambiguously indicated that they will not produce a TMDL for these waterways," and as a result, "the EPA has violated the [Clean Water Act] by failing to issue a TMDL for the Columbia and lower Snake Rivers."