Posted on Friday, April 12, 2013 (PST)
A Portland-based federal judge on Wednesday signed an agreement between The Northwest Environmental Advocates and the federal government that requires more rigorous oversight of Oregon’s setting of water temperature standards for the state’s rivers and streams.
The agreement, between the NWEA and the U.S. Environmental Protection Agency, comes after the court ruled in favor of NWEA’s challenge to numerous aspects of Oregon’s water quality standards under the Clean Water Act and the Endangered Species Act. The lawsuit is the second time NWEA has successfully challenged EPA’s approval of Oregon’s temperature standards.
“For 20 years Oregon has tried – and repeatedly failed – to put standards in place that protect salmon, steelhead, and bull trout,” said NWEA Executive Director Nina Bell. “We hope that the court’s order will usher in a new day in which the State of Oregon and the federal agencies take seriously their obligations to protect these threatened and endangered species from
the most widespread pollution problem in Oregon: high water temperatures.”
“This case is important for Oregon water quality and salmon but it also has important national implications,” said Allison LaPlante, staff attorney with the Earthrise Law Center at Portland’s Lewis and Clark College (formerly the Pacific Environmental Advocacy Center), one of NWEA’s lawyers on the case.
“Importantly, the court ruled that EPA could not allow Oregon to essentially exempt the very human activities – logging and farming – that are causing high water temperatures across the state.”
Among the provisions the court struck down was EPA’s approval of an Oregon Department of Environmental Quality rule that allowed the agency to automatically replace its other criteria with temperatures it deems “natural,” without any subsequent federal agency review. A provision widely used by DEQ, it has generated temperatures as high as 32 degrees C (90 F), compared to the 18 C (64° F) numeric criterion that the court found was, while high, acceptable for fish.
“We are very pleased the court has vacated provisions that allowed Oregon to automatically change its water quality standards to temperatures clearly unsafe for fish,” said Dan Mensher, an attorney with Earthrise. “Those provisions made a mockery of the law, of common sense, and of the science that shows that salmon and steelhead need cold water, not temperatures up to 90 degrees Fahrenheit.”
EPA agreed to take action on the rules within four months. It also agreed to review an Oregon DEQ guidance document that allegedly shows how Oregon will implement federal requirements intended to protect clean water from becoming more polluted.
In an order signed in January, the court approved an agreement between the parties that allowed Oregon DEQ to remove the provisions in its rules that exempt the major sources of temperature pollution from the standards. Oregon must complete that rulemaking by June or face an EPA action on those provisions.
The January order also directed EPA, the National Marine Fisheries Service, and the U.S. Fish and Wildlife Service to analyze the temperature standards under the ESA. The federal agencies have roughly two years to complete those actions.
The January order set aside NMFS and USFWS ESA “biological opinions” and accompanying “incidental take statements” on the effects on listed species from EPA’s approval of Oregon’s temperature water quality standards. It ordered that the BiOps be redone, requiring that EPA complete a biological evaluation within nine months.
That evaluation would then be scrutinized by the federal fisheries agencies. The court’s January says after receipt of the EPA biological evaluations, NMFS and USFWS must produce BiOps within 14 months.
Under the ESA biological opinion formal consultation process, NMFS and USFWS determine whether a federal action, such as the approval of state water quality rules, is likely to adversely affect a listed species or critical habitat.
In this case NMFS will judge whether the water quality rules jeopardize the survival of 14 listed salmon and steelhead stocks, while the USFWS will weigh the impacts on two bull trout “designated populations segments.”
In a separate lawsuit filed in September 2012, NWEA challenged all the temperature clean-up plans developed since 2004 in which Oregon DEQ automatically changed its water quality standards from 16 to 18 degrees C to much higher temperatures. Known as Total Maximum Daily Loads or “TMDLs,” each clean-up plan invoked the provision that allowed Oregon to change its standards without federal agency review. That case is still pending.