Federal Court Orders EPA to Complete Water
Increased water temperatures in the two rivers "appropriately lies on
the presence of dams and point source dischargers located on both rivers."
A U.S. District Court in Washington ordered the Environmental Protection Agency to set temperature limits, known as total maximum daily load, in the Snake and Columbia rivers to protect threatened and endangered salmon and steelhead.
The states of Washington and Oregon had submitted temperature TMDLs to the EPA, but in 2000, the states and others in a memorandum of understanding with the EPA, agreed that the federal agency would develop the temperature TMDL and that the states would be responsible for total dissolved gas TMDLs. The EPA has failed during the 18 year period to develop the temperature limits.
According to Judge Ricardo Martinez in the U.S. District Court, Western District of Washington, Seattle, in his Oct. 17, 2018, Order on Motions for Summary Judgement "When water temperatures approach 68° F, adult salmon have difficulty migrating upstream, and at 72-73° F, migration stops altogether. Salmon that have stopped or slowed in their migration may end up staying in the warm water, where they are at risk of death, disease, decreased spawning productivity, and delayed spawning."
He continued saying that both plaintiffs and defendants in the case agree that the potential causes for increased water temperatures in the two rivers "appropriately lies on the presence of dams and point source dischargers located on both rivers."
Martinez' order is here.
Martinez gave the EPA 30 days to approve state temperature TMDLs, or 30 more days to develop temperature TMDLs on its own if it rejects the state-submitted TMDLs.
"Because of today's victory, EPA will finally write a comprehensive plan to deal with dams' impacts on water temperature and salmon survival," said Brett VandenHeuvel, Executive Director of Columbia Riverkeeper.
Columbia Riverkeeper, Snake River Waterkeeper, Idaho Rivers United, Pacific Coast Federation of Fishermen's Associations, and the Institute for Fisheries Resources brought the suit that they say was sparked by record-high water temperatures in recent years, including an incident in 2015 where 250,000 adult sockeye salmon died when the Columbia and Snake rivers became too warm. The suit was first filed in the Western Washington District Court Feb. 23, 2017.
The temperature TMDL is a federal Clean Water Act pollution budget designed to protect salmon from hot water in rivers. According to the order, the presence of high temperatures in the Columbia and Snake rivers led Washington and Oregon -- both for the first time in 1996 -- to place both rivers on their CWA Sec. 303(d) lists of impaired waters.
Washington's current standards require that temperatures must stay below 60.8-68° F depending upon the time of year, location, and fish present. Oregon's ranges from 55.4° F for some fish spawning areas from the months of October to April, to 68° F year-round.
However, both state's water temperature standards include "natural conditions criteria" for temperature, which provide that "if the natural temperatures in the water body exceed the numeric biologically-based criteria, then the natural temperatures constitute the applicable temperature criteria for that water body," according to the court order. "While the Environmental Protection Agency approved both states' natural condition criteria in the past, that EPA approval was overruled in part after litigation in Oregon, and is currently involved in pending litigation in Washington."
"Our members' livelihoods depend on healthy salmon runs," said Glen Spain, Northwest Regional Director of the Pacific Coast Federation of Fishermen's Associations and the Institute for Fisheries Resources. "It's simply unacceptable to let hot water kill otherwise-healthy adult salmon before they can spawn. We're glad EPA will finally do its job."
The MOA was signed by the states of Washington, Oregon and Idaho, Columbia Basin Tribes and EPA Region X Oct. 16, 2000 after Oregon and Washington had submitted their lists of Sec. 303(d) impaired waters. It laid out an agreement among the parties that the EPA would either approve the states' TMDL proposals or develop a joint Columbia/Snake river TMDL with the help of the states.
In addition, according to the order, each state was designated to assist the EPA with the production of "significant portions" of the implementation plans for the temperature TMDL, particularly with regards to those sections related to non-point sources.
EPA developed a work plan that would have the federal agency complete a draft temperature TMDL by February 2002 followed by a 90-day public comment period and a final TMDL by July or August 2002. The EPA released a preliminary draft in July 2003.
"Since July 2003, the EPA has not issued a final temperature TMDL, indicating in an internal EPA document that the EPA worked 'extensively on a draft TMDL until late 2003,' with that work then suspended due to disagreements between federal agencies at the national level," the Order says.
Once litigation had begun, the EPA sent an Aug. 10, 2017 letter to the states requesting a modification of the MOA so that direct work on the final TMDL could be resumed.
"In its letter, the EPA states that changed circumstances involving technology, natural conditions, and legal challenges to previous EPA and state standards necessitate a modification to the MOA prior to the EPAs ability to issue any final temperature TMDL," the order says.
Martinez goes on to say that since 2003 native salmon and steelhead populations in the Columbia basin have continued to be affected by warm water temperatures. In 2015, warm water was responsible for the deaths of roughly 250,000 migrating adult sockeye salmon, with upper Columbia River sockeye having the lowest survival rate in six years and Snake River sockeye, listed as endangered under the federal Endangered Species Act, having a survival rate of just 4 percent, the order says.
Native steelhead populations have also been affected, with predictions on the 2017 run indicating that it had "collapsed," and with the Idaho Department of Fish and Game for the first time prohibiting anglers from taking Snake River steelhead, according to the order.
"Hot water in the lower Snake and Columbia rivers has been a year-in, year-out problem for endangered salmon," said Kevin Lewis, Executive Director of Idaho Rivers United. "This victory will create more protections for endangered species that are an indelible part of our northwest way of life, culture, economy and heritage."
"This decision represents a clear victory for critically endangered salmon and steelhead populations" said Snake River Waterkeeper Buck Ryan. "EPA must now act to protect what remains of the once-magnificent anadromous fisheries on the Snake, Clearwater, and Salmon rivers by ensuring water temperatures stay cool enough to allow passage for spawning."
Conservation Groups File Notice To Sue EPA Over Columbia/Snake Water Temperatures by Staff, Columbia Basin Bulletin, 4/26/16
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