After eight years of legal battling with Portland-based Northwest Environmental Advocates, Oregon and EPA will rewrite plans to protect cool water in 16 river basins, including several Columbia and Snake river tributaries.
The 9th U.S. Circuit Court of Appeals granted a joint motion on Sept. 4 to dismiss Oregon's appeal of a U.S. District Court order in Northwest Environmental Advocates v. U.S. Environmental Protection Agency, and cross appeals by EPA and NWEA.
The parties will now seek an order to extend deadlines from the District Court's Oct. 4, 2019, final order that directed Oregon to develop new total maximum daily loads for temperature for Oregon's rivers and streams that at times are too warm for fish. That ruling required EPA to either approve TMDLs or disapprove and rewrite them within 30 days after Oregon submits them.
Under the Clean Water Act, states must determine impaired waters within their boundaries, and submit TMDLs identifying the sources and proposing solutions for pollution, including temperature. In the lawsuit, filed in September 2012, NWEA successfully argued Oregon's TMDLs for several rivers and streams were inadequate, allowing temperatures lethal to salmon.
The TMDLs cover basin segments on the Willamette and its major tributaries; Umpqua; Applegate; Illinois; Rogue; John Day; Snake's Hells Canyon; Grand Ronde; Imnaha; Wallowa; Hood; Miles Creek; Umatilla; Walla Walla; Willow Creek; and Malheur.
The stipulated motion the 9th Circuit Court approved Sept. 4 gives Oregon and EPA an additional six months to complete the TMDLs on a rolling timeline starting Jan. 15, 2024, and ending May 29, 2028.
What happens when these TMDLs are completed will depend on how Oregon approaches the rewrite, NWEA Executive Director Nina Bell said.
"The TMDLs are, at this point, an expensive, meaningless expression of what needs to get done," Bell said. "Either the state is simply going to go through the motions, in terms of just getting new TMDLs in place and disregard the fact that the TMDLs demonstrate that more pollution controls are necessary, or they'll take a different approach and figure out how to get the appropriate level of pollution controls for all sources," she said.
Bell said the Oregon Department of Environmental Quality agreed in another case to start controlling nonpoint sources in Oregon’s coastal watersheds using TMDLs, and she hopes that agreement will carry over to these TMDLs.
Under the Clean Water Act, TMDLs must account for both point and nonpoint sources of pollution, but they do not create an enforcement mechanism to control nonpoint sources. Single plants that discharge pollutants into the river or increase its temperature are required to have permits that conform to the TMDL. Bell noted increased temperature is largely caused by cumulative impacts from many different nonpoint sources, such as agriculture, logging and reservoirs created for irrigation or hydroelectric generation.
In an email to NW Fishletter, Oregon DEQ spokeswoman Jennifer Flynt said that nonpoint sources will be addressed in these TMDLs. She said once the TMDLs are complete, DEQ will work with the Oregon Department of Forestry and the Oregon Department of Agriculture and other responsible parties to work on implementing them, so that these water bodies can meet temperature standards.
The agency has begun its TMDL replacement process, and is updating the public about the process on its website.
Bell said Oregon could decide to control its nonpoint sources of temperature increases through TMDLs. One incentive to do that, she said, is the significant federal funding it could get through the Coastal Zone Act Reauthorization Amendments of 1990.
According to NOAA's Office for Coastal Management, CZARA establishes management measures for states to use in controlling runoff from five main sources: agriculture, forestry, urban areas, marinas, and modification of shorelines and stream channels.
All coastal states were initially approved, with conditions. States receive full approval after they satisfy all conditions.
Oregon is currently the only U.S. coastal state that has not developed an adequate coastal nonpoint pollution control program and has been disapproved, according to EPA and NOAA's Office for Coastal Management's website.
Washington state's program was initially approved with conditions in 1998, and in June, NOAA and EPA released a proposed finding that the state has satisfied all conditions for final approval.
The approvals come with what can be millions of dollars in annual federal grants. In 2019, EPA provided $165.4 million in grants to coastal states for work ranging from technical assistance and training to monitoring and implementing projects that reduce nonpoint source pollution.
Ultimately, NOAA rejected Oregon's nonpoint pollution control program because its forest practices are inadequate to protect water quality, or support salmon and steelhead.
Specifically, the agency's January 2015 finding said Oregon had not implemented or revised management measures, backed by enforceable authorities, to protect riparian areas for medium-sized and small fish-bearing streams and non-fish-bearing streams.
The state also did not address impacts of forest roads, particularly on so-called "legacy" roads, nor did it protect high-risk landslide areas, the finding said.
Oregon additionally failed to ensure adequate stream buffers for the application of herbicides, particularly on non-fish-bearing streams.
NOAA added that riparian protections of Oregon's forest practices are insufficient to achieve water quality or protect designated uses, including salmon and trout recovery.
Riparian areas help maintain water quality, including cooler temperatures, by providing shade. NOAA found that riparian buffer widths for small- and medium-sized fish-bearing streams may be inadequate to prevent temperature increases, which may be transferred downstream, impacting cold water refuges.
But Flint said addressing the CZARA gaps identified by NOAA and EPA is outside the scope of Oregon DEQ’s work to issue temperature TMDLs because the gaps do not have a nexus with temperature issues.
Bell said she thinks adhering to best forest practices is overlooked in salmon recovery. "The whole focus on the dams and not on the very widespread habitat that is out there, I think, has always been a mistake. And the states really just continue to drag their feet in terms of doing anything about it."
Recent temperature TMDLs issued by EPA for segments of the Snake and Columbia rivers, and by the State of Washington with help from EPA for the South Fork Nooksack River, ask little of the contributing sources. Both include models showing the amount of warming from climate change, and demonstrate that continuing increases in temperature will make the rivers intolerable to fish. "We have these two situations where EPA's done this work, invested all this in scientific studies, and then a deafening thud. There's nothing there," she said. "There's nothing called for."
She said Oregon is now at a point where it could develop adequate forest practices, and include logging and agricultural practices in its new TMDLs. "They might actually play a more significant role in the future with regard to logging and with regard to agriculture," Bell predicted.
Maintaining or improving the temperature of Snake and Columbia river tributaries isn't likely to have a big impact on main-stem temperature problems, she said, but they are still important to salmon recovery in the basin.
"If [TMDLs] were done in a way that means something, I think it is quite clear that at a minimum, they provide this thermal refuge during migration in the Columbia and Snake rivers," Bell said.
And just as importantly, she noted, "The tributaries are habitats of their own," Bell said. "There's been all this focus for all these years on the dams, including by environmental groups, that they're this terrible thing. But a fish that gets to a natal river and doesn't have the habitat to spawn and rear in is not being wiped out by a dam, but by farming and logging."